The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions. (b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”). (c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 3 contracts
Sources: Merger Agreement (RP Management, LLC), Merger Agreement (Ramius Value & Opportunity LLC), Merger Agreement (Cypress Bioscience Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Article 7, as promptly as practicable after the date hereof, hereof (but in no event later than three Business Days following the public announcement of the execution of this AgreementJanuary 13, 2020), Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer to purchase for cash any and all (i) Shares (other than Shares to be cancelled in accordance with its terms Section 2.1(b)) at the Share Offer Price and (ii) Preferred Shares at the Preferred Share Offer Price. Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for all Shares and Preferred Shares, as applicable, validly tendered and not properly withdrawn pursuant to the Offer, subject only to: (a) there being validly tendered in the Offer (in the aggregate) and not properly withdrawn prior to the Expiration Date that number of Shares and Preferred Shares that, together with the number of Shares and Preferred Shares (if any) then owned by the Parent, equals at least a majority of the voting power represented by the Shares and Preferred Shares (voting on an as-converted basis in accordance with the Certificate of Designations) that are then issued and outstanding (the “Minimum Condition”); and (b) the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I.
(b) On or prior to the date that Merger Sub becomes obligated to pay for Shares and Preferred Shares pursuant to the Offer, Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for any and all Shares and Preferred Shares, as applicable, that Merger Sub shall become obligated to accept for payment each Share and purchase pursuant to the Offer. Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I, Merger Sub shall accept for payment (the time of such acceptance, the “Acceptance Time”) and pay for all Shares and Preferred Shares validly tendered and not properly withdrawn pursuant to the Offer and promptly as soon as practicable following the acceptance of Shares for payment pursuant to Expiration Date, and, in any event, no more than two (2) Business Days after the Offer pay the Expiration Date. The Offer Price (without interest) for payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for paymentPreferred Share, and pay the Offer Price (without interest) foras applicable, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid to the satisfactionseller in cash, or waiver without interest, subject to any withholding of Taxes required by Parent or Merger Subsidiaryapplicable Law, on the terms and subject to the conditions set forth in this Agreement.
(c) The Offer shall be made by means of each an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer Conditions.
(b) in accordance with applicable Law and this Agreement, including the conditions and requirements set forth in Annex I. To the extent permitted by applicable Law, Parent and Merger Subsidiary Sub expressly reserves reserve the right to waive any of increase the Offer Conditions and Price or to make any other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that without except with the prior consent written approval of the Company Company, Merger Sub shall not (which consent may be granted or withheld by i) decrease the Company in its sole discretion) (A) the Minimum Condition may not be waivedOffer Price, (Bii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends (iii) reduce the maximum number of Shares or adds Preferred Shares sought to be purchased in the Offer, (iv) amend, modify or waive the Minimum Condition, (v) amend any of the other conditions to the Offer Conditions set forth in Annex I in a manner adverse to the holders of Shares or amends Preferred Shares, (vi) impose conditions to the Offer that are in addition to the conditions to the Offer set forth in Annex I hereto, (vii) except as provided in Sections 1.1(e) and 1.1(f), terminate, accelerate or otherwise modify or amend the Offer to accelerate the Expiration Date, or (viii) otherwise modify or amend any of the other term terms of the Offer in any a manner adverse in any material respect to the stockholders holders of Shares or Preferred Shares.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at one minute after 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on any then scheduled Expiration Date, any of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten (10) Business Days each, or such longer period as may be agreed between Merger Sub and the Company, (C) in order to permit the expiration date satisfaction of such conditions; provided, however, that Merger Sub shall not be extended except as otherwise provided hereinrequired to extend the Offer beyond the Outside Date. The “Outside Date” shall be June 20, and 2020. In addition, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff.
(Df) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Date without the prior written consent of the Company, except if this Agreement has been terminated in the event that accordance with Article 7. If this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoingin accordance with Article 7, (x) Merger Subsidiary Sub shall (or at the request of the Company, and Parent shall cause Merger Subsidiary Sub to) extend promptly (and in any event within 24 hours following such termination), irrevocably and unconditionally terminate the Offer if at and shall not acquire any Shares or Preferred Shares pursuant thereto. If the scheduled Offer is terminated or extended expiration withdrawn by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, Merger Sub shall (and the Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares and Preferred Shares to the registered holders thereof and Merger Sub shall not (and Parent shall cause Merger Sub not to) accept any Shares or Preferred Shares pursuant to the Offer.
(g) As soon as practicable on the date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and Merger Subsidiary shallSub shall file with the SEC, 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 14d-3 under the 1934 Exchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentexhibits thereto, the “Acceptance DateSchedule TO”).
(c) As promptly . The Schedule TO shall include, as practicable after exhibits, the date hereofOffer to Purchase, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement a form of summary advertisement (collectively, together with any amendments or amendments, supplements and exhibits thereto, the “Offer Documents”), . Parent and (ii) Merger Sub agree to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares and Preferred Shares, as and to the extent required by federal securities Laws, including the Exchange Act. Each of ParentParent and Merger Sub, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first publishedone hand, sent or given to the stockholders of and the Company, shall not contain any untrue statement of a material fact or omit on the other hand, agree to state any material fact required to be stated therein or necessary in order to make promptly notify the statements therein, in light of the circumstances under which they were made, not misleading (except that Parent other party and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shallrespect or as otherwise required by applicable Law, and shall cause its Affiliates to, use their respective reasonable best efforts Merger Sub agrees to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares and Preferred Shares, in each case case, as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. Except following a Change of Board Recommendation, the Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and Merger Sub shall give due consideration to any additions, deletions or changes suggested thereto by the Company and its counsel. In addition, except following a Change of Board Recommendation, Parent and Merger Sub shall provide the Company and its counsel with copies of any written comments, and shall provide them an oral summary of any oral comments, that Parent and Merger Sub or 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 such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof responses and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, Parent and Merger Subsidiary Sub shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 3 contracts
Sources: Merger Agreement (Care.com Inc), Merger Agreement (Iac/Interactivecorp), Merger Agreement (Iac/Interactivecorp)
The Offer. (a) Provided As promptly as practicable (and in any event within ten (10) Business Days) after the date hereof, the Purchaser shall (and Parent shall cause the Purchaser to) commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), the Offer to purchase all the outstanding Common Shares at the Common Offer Price and all the outstanding Preferred Shares at the Preferred Offer Price. The obligation of the Purchaser to commence the Offer shall be subject only to the condition that nothing none of the events set forth in clauses (c)(i) through (c)(iv) of Annex I hereto shall have occurred that would give rise and be continuing (and not waived by Parent or the Purchaser in their sole discretion), and the obligation of the Purchaser to a right accept for payment, purchase and pay for Shares validly tendered and not withdrawn pursuant to terminate the Offer pursuant shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to any the Expiration Date that number of Shares which, together with the number of Shares (if any) then owned of record by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Common Shares then outstanding (determined on a Fully Diluted Basis) (the “Minimum Condition”); and (ii) the satisfaction, or waiver 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 waiver by Parent or the Purchaser, of the other conditions and requirements set forth in Annex I, the Purchaser shall (and Parent shall cause the Purchaser to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after Purchaser is legally permitted to do so under applicable Law. For the date hereofavoidance of doubt, but the Acceptance Time shall not occur (and Purchaser may not accept for payment any Shares tendered pursuant to the Offer) prior to the Initial Expiration Date or if the Minimum Condition is not satisfied. The Common Offer Price and Preferred Offer Price payable in no event later than three Business Days following the public announcement respect of the execution of this Agreementeach Common Share and Preferred Share, Merger Subsidiary shall amend respectively, validly tendered and not properly withdrawn pursuant to the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), 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 2.2(e).
(iic) provide that the conditions to the The Offer shall be as 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 I. Parent and the Purchaser expressly reserve the right to increase the Common Offer Price and the Preferred Offer Price in proportion to each other or to make any other changes in the terms and conditions of the Offer; provided, however, that no other conditions unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall applynot (i) decrease the Common Offer Price or the Preferred Offer Price, (ii) change the form of consideration payable in the Offer, (iii) provide that reduce the expiration date maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend or modify any term, condition or requirement of the Offer in a manner adverse to the holders of Shares, (vi) add any additional condition to the Offer or (vii) extend or change the Expiration Date in a manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall be expire at midnight (New York City time) on the date that is ten twenty (20) 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 Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The , the date on which the Offer shall be subject has been so extended (the Initial Expiration Date, or such later date to which the condition that there shall be validly tendered Initial Expiration Date has been extended in accordance with this Agreement, the terms “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the Offer prior conditions to the expiration date of Offer (including the Offer Minimum Condition and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions and requirements set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (xI) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has have not been satisfied, or waived by Parent or Merger Subsidiarythe Purchaser, Merger Subsidiary the Purchaser may, and, if requested by the Company, shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary Purchaser to) extend the Offer for successive periods of up to ten (10) Business Days each, the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that neither Parent nor the Purchaser shall be required to extend the Offer (i) beyond April 22, 2011 (the “Outside Date”), (ii) if either of the conditions set forth in clause (c)(iii) or (c)(iv) of Annex I are not at such time satisfied in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the scheduled breach or extended expiration date breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than forty-five (45) days, in which case the Company may (if all other conditions set forth in clauses (c)(iii) and (c)(iv) of Annex I are satisfied) request one or more extensions of the Offer any pursuant to this sentence for up to forty-five (45) days in the aggregate) or (iii) after the Company delivers or is required to deliver to Parent a notice with respect to an Acquisition Proposal that has been received by the Company in accordance with Section 5.4(c), except to the extent that (A) prior to the expiration of the conditions Offer the Acquisition Proposal giving rise to such notice has been withdrawn or the Offer shall Company Board has rejected the Acquisition Proposal giving rise to such notice and, in each case, the Company Board has reconfirmed the Company Board Recommendation and the withdrawal or rejection of such Acquisition Proposal, and the reconfirmation of the Company Board Recommendation has been publicly announced by the Company or (B) less than three (3) Business Days have elapsed since the Company has received such Acquisition Proposal and there has not be satisfied or waivedbeen a Change of Board Recommendation. In addition, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary Purchaser shall extend the Offer (i) for any period or periods required by any ruleapplicable Law or applicable rules, regulationregulations, interpretation interpretations or position positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff or (ii) following Parent’s receipt of written notice from the Nasdaq Global Market applicable Company within the three (3) Business Day period immediately preceding (and including) the Expiration Date advising Parent that the Company Board intends to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent make a Change of Board Recommendation or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i5.4(d), in which case Merger Subsidiary shall be required until (and including) the third (3rd) Business Day following the date of such receipt.
(f) If necessary to extend obtain sufficient Common Shares and Preferred Shares to reach the Offer beyond Short Form Threshold (without regard to the End Date. Following expiration exercise of the OfferTop-Up Option), Merger Subsidiary shallthe Purchaser may, and, if requested by the Company, or may, in its sole discretionshall (and shall cause the Purchaser to), provide for a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 under the Exchange Act of the 1934 Actat least three (3) Business Days. Subject to the foregoingterms and conditions of this Agreement and the Offer, including the requirements of Rule 14d-11Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment, and upon pay for, all Shares that are validly tendered pursuant to the Offer during such “subsequent offering period”. The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall (and subject Parent shall cause the Purchaser to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the conditions purchase of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(h) As soon as practicable on the date of the commencement of the Offer, Merger Subsidiary shallParent and the Purchaser shall file with the SEC, and Parent shall cause it toin accordance with Rule 14d-3 under the Exchange Act, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentexhibits thereto, the “Acceptance DateSchedule TO”).
(c) As promptly . The Schedule TO shall include, as practicable after exhibits, the date hereofOffer to Purchase, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement a form of summary advertisement (collectively, together with any amendments or and supplements thereto, the “Offer Documents”), . Parent and (ii) the Purchaser agree to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares, as and to the extent required by the Exchange Act. Each of Parent, Merger Subsidiary Parent and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer DocumentsPurchaser, when filed with the SEC and on the date first publishedone hand, sent or given to the stockholders of and the Company, shall not contain any untrue statement of a material fact or omit on the other hand, agree 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shallrespect or as otherwise required by applicable Law, and shall cause its Affiliates to, use their respective reasonable best efforts Parent and the Purchaser agree to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Merger Subsidiary Parent and the Purchaser shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Subsidiary the Purchaser shall provide the Company and its counsel with copies of any written or comments, and shall inform them of any oral comments comments, that Parent, Merger Subsidiary the Purchaser or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and the Purchaser shall give due consideration to the provisions hereofreasonable additions, promptly respond to such commentsdeletions or changes suggested thereto by the Company and its counsel.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (General Electric Co), Merger Agreement (Clarient, Inc)
The Offer. (a) Provided that nothing this Agreement shall --------- not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Section 9.1 and none of the events or conditions set forth in Annex IArticle 7 shall have occurred and be existing, as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following five (5) business days after the public announcement of the execution hereof by the parties, Acquisition shall commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, Merger Subsidiary as amended (the "Exchange Act"), the Offer; and Acquisition shall amend use reasonable efforts to consummate the Offer, including, without limitation, engaging an information agent in connection therewith. Acquisition shall accept for payment Shares which have been validly tendered and not withdrawn pursuant to the Offer to (i) increase at the purchase price to $6.50 per Share (earliest time following expiration of the “Offer Price”), net to the seller in cash, (ii) provide that the all conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has have been satisfied, satisfied or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the OfferAcquisition. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Acquisition to accept for payment, purchase and pay the Offer Price (without interest) for, each Share validly for Shares tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of condition that at least 2,000,000 Shares be validly tendered (the Offer Conditions.
(b"Minimum Condition") Merger Subsidiary and the other conditions set forth in Article 7. Acquisition expressly reserves the right to waive any of increase the price per Share payable in the Offer Conditions and or to make any other changes in the terms of or and conditions to the Offer; provided that without the prior consent of the Company Offer (which consent may be granted or withheld provided that, unless previously approved by the Company in its sole discretion) (A) the Minimum Condition may not be waivedwriting, (B) no change may be made that which decreases the Per Share Amount, which changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the which imposes conditions to the Offer shall not in addition to those set forth in Article 7 or which broadens the scope of such conditions). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be satisfied asserted by Acquisition regardless of the circumstances giving rise to any such condition (including any action or waivedinaction by Acquisition) or may be waived by Acquisition, in whole or in part at any time and from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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 maytime, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 . The failure by Acquisition at any time to exercise any of the 1934 Actforegoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Subject Any determination (which shall be made in good faith) by Acquisition with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Per Share Amount shall be paid net to the foregoingseller in cash, including the requirements less any required withholding of Rule 14d-11taxes, and upon the terms and subject to the such conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after . The Company agrees that no Shares held by the expiration Company or any of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly its subsidiaries will be tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentOffer. Pursuant to separate agreements, the “Acceptance Date”)persons listed in Schedules 2.1(a) and 2.1(b) have agreed not to tender in the Offer the number of Shares listed in such Schedules without Parent's consent.
(cb) As promptly soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and Acquisition shall cause its Affiliates to, (i) file with the SEC an amendment Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Schedule TOOffer, which shall include a revised an offer to purchase and form of transmittal letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments thereof or supplements thereto, collectively the “"Offer Documents”"), and (ii) to the extent required by applicable U.S. federal securities laws, cause the . The Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act provisions of applicable federal securities laws. The information provided and to be provided by the rules and regulations thereunder and other applicable Law and that Company, Parent a nd Acquisition for use in the Offer DocumentsDocuments shall not, when on the date filed with the SEC and on the date first published, published or sent or given to the stockholders of Company's stockholders, as the Companycase may be, shall not contain any untrue statement of a material fact or nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except misleading, provided, however, that no representation or warranty is made by Parent and Merger subsidiary shall have no obligation or Acquisition with respect to any information in the Offer Documents supplied by the Company or any of its Representatives stockholders for inclusion in writing)the Offer Documents. Each The Company agrees that information provided by the Company for inclusion or incorporation in the Offer Documents shall not contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent, Merger Subsidiary Acquisition and the Company each 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 false or misleading in any material respect. Merger Subsidiary shall, respect and shall cause its Affiliates to, use their respective reasonable best efforts Acquisition further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 3 contracts
Sources: Merger Agreement (Marriott International Inc /Md/), Merger Agreement (Mi Subsidiary I Inc), Merger Agreement (Execustay Corp)
The Offer. (a) Provided that nothing shall have occurred that would give rise On or prior to a right to terminate the Offer pursuant to any of the conditions set forth in Annex IAugust 30, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement2013, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer.
(b) The obligation and right of Merger Sub to accept for payment and pay for any shares of Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer (and not validly withdrawn) prior to any then scheduled Expiration Time that number of shares of Common Stock which, together with the shares beneficially owned by Parent or Merger Sub, represents at least a majority of the Common Stock then outstanding (determined on a fully diluted basis (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof)) (the “Minimum Condition”), and (ii) the satisfaction, or waiver by Parent or Merger Sub (to the extent permitted hereby), of the other conditions and requirements set forth in Exhibit A (together with the Minimum Condition, the “Offer Conditions”). Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment each Share and pay for all shares of Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer and as promptly following as practicable after the acceptance of Shares for payment pursuant Expiration Time. The conditions to the Offer pay set forth in Exhibit A are for the sole benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the circumstances (including any action or inaction by Parent or Merger Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under this Agreement) giving rise to such condition or may be waived by Parent or Merger Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to this Section 1.01. The Offer Price (without interest) for payable in respect of each Share share of Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid net to the satisfactionseller in cash, or waiver without interest, subject to any withholding of Taxes pursuant to Section 4.02(i).
(c) The Offer shall be made by Parent or Merger Subsidiary, means of each an offer to purchase (the “Offer to Purchase”) that includes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions.
(b) . Parent and Merger Subsidiary expressly reserves Sub reserve the right to waive waive, in whole or in part, any of Offer Condition (other than the Minimum Condition), to increase the Offer Conditions and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement or conditions as previously approved in writing by the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer; provided that without , (ii) reduce the prior consent of the Company Offer Price, (which consent may be granted iii) change, modify or withheld by the Company in its sole discretion) (A) waive the Minimum Condition may not be waivedCondition, (Biv) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds add to the conditions set forth in Exhibit A or modify or change any Offer Conditions or amends any other term of the Offer Condition in any a manner adverse to the stockholders any shareholders of the Company, (Cv) the expiration date shall not be extended except as otherwise provided hereinin this Section 1.01, extend or otherwise change the expiration date of the Offer, (vi) change the form of consideration payable in the Offer or (vii) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse to any shareholder of the Company.
(d) The Offer shall expire at midnight (New York City, New York time) on the date that is 20 Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Unless this Agreement has been terminated in accordance with its terms: (i) if on or prior to any then scheduled Expiration Time, all of the conditions to the Offer (including the Minimum Condition and the other Offer Conditions) 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 (A) may (and in such case Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten Business Days each (or such longer period of up to 20 Business Days if the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions; and (B) shall (and Parent shall cause Merger Sub to) extend the Offer on one occasion for a period of up to seven Business Days if requested by the Company; (ii) Merger Sub may (and in such case Parent shall cause Merger Sub to) extend the Offer on one occasion at the Initial Expiration Time for a period of up to ten Business Days if the Debt Financing or Alternative Financing has not actually been received by Merger Sub or Parent, and the Debt Financing Sources have not definitively and irrevocably confirmed in writing to Parent and Merger Sub that the Debt Financing (Dor Alternative Financing) in an amount sufficient (together with the Equity Financing and cash available to the Company) to consummate the Offer and the Merger shall be available at the Offer Closing on the terms set forth in the Debt Financing Letter and subject only to the satisfaction of the Offer Conditions (and contribution by Parent or Merger Sub of the proceeds of the Equity Financing); and (iii) Merger Subsidiary Sub shall (and Parent shall cause Merger Sub to) extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the Securities and Exchange Commission or its staff (the “SEC”); provided, however, that, in any case in this Section 1.01(e), Merger Sub shall not be required to extend the Offer beyond November 29, 2013 (the “Outside Date”) and shall not be permitted to extend the Offer beyond the Outside Date without the Company’s consent.
(f) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 4.02(i)) all shares of Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Acceptance for payment of shares of Common Stock pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right to, in its sole discretion, following the Offer Closing, extend the Offer for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (as defined below) may, in Merger Sub’s sole discretion, provide for such a reservation of right. Nothing contained in this Section 1.01 shall affect any termination rights in Article 9.
(g) Merger Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Time without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 11.01Article 9. Notwithstanding If the foregoingOffer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, (x) Merger Subsidiary shall (or at if this Agreement is terminated pursuant to Article 9, prior to the request acceptance for payment of the CompanyCommon Stock tendered in the Offer, Parent Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Subsidiary toSub to return, in accordance with applicable Law, all tendered Common Stock to the registered holders thereof.
(h) extend As soon as practicable on the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and 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. 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 Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement, if any (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer shall be made, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company shall promptly furnish to Parent and (ii) to Merger Sub all information concerning the extent Company required by applicable U.S. federal securities laws, the Exchange Act to be set forth in the Offer Documents. Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given disseminated to the stockholders shareholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by the statements therein, in light of the circumstances under which they were made, not misleading (except that Exchange Act. Parent and Merger subsidiary shall have no obligation with respect to any information in Sub, on the Offer Documents supplied by the Company or its Representatives in writing). Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to promptly to correct any material 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 false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the shareholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. 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 promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the 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 shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsresponse, 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 provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
(i) Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any shares of Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Campbell Thomas J), Merger Agreement (Michael Baker Corp), Merger Agreement (Michael Baker Corp)
The Offer. (a) Provided The Borrower agrees that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable from and after the date hereofEffective Date, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to it shall:
(i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to times comply in all material respects with the 1934 Act Bidding Rules and the rules all other applicable laws and regulations thereunder and relevant to the Offer, except to the extent that any exemption, consents, waivers, or dispensations has been obtained from the Dutch Authority for the Financial Markets (“AFM”) or any other applicable Law regulator. The Borrower shall promptly notify the Administrative Agent of any such exemptions, consents, waivers, or dispensations and provide copies of any correspondence or approvals received from the AFM or other relevant regulators;
(ii) promptly provide the Administrative Agent with such information as it may reasonably request in writing regarding material changes to the status and progress of the Offer, including any regulatory and antitrust clearances required in connection with the Offer and any other information reasonably requested in relation to the Offer, subject only to confidentiality, regulatory, or other legal restrictions relating to the supply of such information and only to the extent such information is available to the Borrower. The Borrower shall take all reasonable steps to ensure that such information is provided in a timely and accurate manner. Notwithstanding the foregoing, the Borrower shall not be required to provide any information to the extent it has determined that such information cannot be provided without breaching applicable laws and regulations (including applicable securities and market abuse laws);
(iii) The Borrower shall not (and shall cause its Subsidiaries and Affiliates to not) amend or waive (or consent to amend or waive) any provision of the Offer Documents, when filed other than any amendment, waiver or consent:
(A) made with the SEC and consent of the Required Lenders;
(B) required or requested by the AFM or reasonably determined by the Borrower (acting on the date first published, sent advice of its legal advisers) as being necessary or given desirable to comply with the requirements of the AFM or any other relevant regulatory body or applicable law or regulation; or
(C) to the stockholders extent such amendment, waiver or consent would not constitute a Material Adverse Amendment;
(iv) use commercially reasonable endeavours to implement any Squeeze Out Procedure, or Alternative Transaction Structure as soon as reasonably possible after the Final Settlement Date;
(v) not declare the Offer unconditional unless the Minimum Acceptance Condition is achieved;
(i) shall not execute the Merger Protocol without the prior written consent of the Company, 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 Parent and Merger subsidiary shall have no obligation Administrative Agent with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it financing-related content or any other information of material relevance to the Lenders as a whole, in their capacity as such (it being understood and agreed that the Administrative Agent agrees to and provides its Affiliates consent in advance to the execution of the Merger Protocol in substantially the form delivered to it pursuant to Section 4.01(g)) save for use any changes, amendments or provisions which are not adverse to the interests of the Lenders (taken as a whole);
(ii) shall not issue the Initial Announcement without the prior written consent of the Administrative Agent with respect to any financing-related content or any other information of material relevance to the Lenders, in their capacity as such, including, without limitation, the Schedule TO Certain Funds Announcement (it being understood and agreed that the Offer Documents if Administrative Agent agrees to and provides its consent in advance to the issuance of the Initial Announcement in substantially the form delivered to it pursuant to Section 4.01(g)) save for any changes, amendments or provisions which are not adverse to the interests of the Lenders (taken as a whole); and
(iii) shall, to the extent that permitted under applicable laws and regulation, before issuing any Press Release or submitting the final version of the Offer Memorandum directly concerning any material commercial term of the financing of the Offer or the Transactions (the “Relevant Offer Documents”) and only to the extent such information shall have become false or misleading Relevant Offer Document, (a) is materially inconsistent with the Initial Announcement (if applicable) and any disclosure contained in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause Form 8-K filed on or around the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders date of Sharesthis Agreement, in each case as and with respect to any disclosure concerning the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning financing of the Offer or the Transactions, including, without limitation, the Certain Funds Announcement, and/or (b) could reasonably be expected to materially and adversely affect the interests of the Lenders (in their capacity as such and taken as a whole), the Borrower shall use reasonable efforts to provide a copy of such Relevant Offer Documents to the Administrative Agent at least three (3) Business Days before such Relevant Offer Document is issued or submitted and take into account any reasonable comments with respect to such Relevant Offer Documents, provided further that: (i) there shall be no requirement to provide a copy of a Relevant Offer Document to the Administrative Agent in advance if the Borrower is required, under applicable laws and Merger Subsidiary regulations, to issue or submit the Relevant Offer Document immediately or within a period of less than three (3) Business Days, in which case the Borrower shall give use reasonable efforts to deliver a copy to the Administrative Agent as soon as practicable prior to issuance or submittance (and good faith consideration if not, as soon as practicable thereafter); (ii) the prior consent of the Administrative Agent shall at no time be required in order to issue a Relevant Offer Document; (iii) any comments made by the Company Administrative Agent that is contrary to requirements of applicable laws and its counsel. Parent regulations shall not be deemed reasonable; and Merger Subsidiary (iv) the Administrative Agent shall provide be deemed to have no comments on the Company and its counsel with any written or oral Relevant Offer Document if such comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the are not provided within two (2) Business Days of receipt of a copy of such comments, and, subject to the provisions hereof, promptly respond to such commentsRelevant Offer Document.
Appears in 2 contracts
Sources: Bridge Credit Agreement (Keurig Dr Pepper Inc.), Bridge Credit Agreement (Keurig Dr Pepper Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 10.01, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of substantially concurrently with the execution and delivery of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 95.00 per Share Share, net to the seller in cash (the “Offer Price”), net to the seller in cash, ; (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, others; (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmentMarch 25, 2009; and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which provided that such consent may be granted or withheld has been approved by the Company in its sole discretionSpecial Committee), Merger Subsidiary shall not:
(i) (A) change the Minimum Condition may not be waived, (B) no change may be made that changes the amount or form of the consideration to be paid, decreases the price per Share paid or the number of Shares sought in the Offer;
(ii) waive the Majority of the Minority Condition (as defined in Annex I);
(iii) add to, amends amend, modify, supplement or adds otherwise change any of the conditions to the Offer Conditions or amends set forth in Annex I;
(iv) amend any other term of the Offer in any manner adverse to the stockholders of the Company, Company (Cother than Parent and its Affiliates); or
(v) extend the expiration date shall not be extended of the Offer except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoingclause (v) above, (x) Merger Subsidiary shall (or at the request of the Company, and Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of (x) from time to time, for successive periods not to exceed 10 business days each, until the conditions to the Offer shall not be are satisfied or waivedwaived if any of the conditions is not satisfied or waived on any scheduled expiration date of the Offer, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend for the Offer for any minimum period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market staff thereof applicable to the OfferOffer or any period otherwise required by applicable Law; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. .
(c) Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject conditions set forth in this Agreement and to the satisfaction or waiver of the conditions of to the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1i) validly tendered and not withdrawn pursuant to the Offer and (2ii) validly tendered in the any Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(cd) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of Substantially concurrently with the execution and delivery of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, Merger Subsidiary shall cause the Offer Documents to be promptly disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company Company, the Special Committee and its their respective counsel shall be given a reasonable opportunity to review and comment (A) on any amendment to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company Company, the Special Committee and its their respective counsel. Parent and Merger Subsidiary shall provide the Company Company, the Special Committee and its their respective counsel with (i) any comments or other communications, whether written or oral comments oral, that Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such commentsthose comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), and, subject to including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the provisions hereof, promptly respond to such commentsSEC.
Appears in 2 contracts
Sources: Merger Agreement (Roche Investments USA Inc.), Merger Agreement (Genentech Inc)
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex Ithis Agreement, as promptly as practicable practicable, and in any event no more than seven Business Days, after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it Merger Subsidiary to, commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Subsidiary to, and of Parent to cause Merger Subsidiary to, accept for payment and pay forfor any Shares tendered shall be subject only to the satisfaction of the conditions set forth in Annex A and to the terms and conditions of this Agreement; provided that Parent and Merger Subsidiary may waive any of the conditions to the Offer (other than the Minimum Condition, as promptly as practicable after which may not be waived without the expiration prior written consent of the Company) and may make changes in the terms and conditions of the Offer except that, without the prior written consent of the Company, no change may be made to the form of consideration to be paid, no decrease in the Offer Price or the number of Shares sought in the Offer may be made, no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and neither Parent nor Merger Subsidiary may extend the Offer, except in accordance with Section 2.01(c).
(b) On the date of commencement of the Offer, all Shares (1) validly tendered Parent and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO (as amended and supplemented from time to time, the “Schedule TO”), which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 provisions of applicable federal securities Laws, and shall contain the offer to purchase relating to the Offer and forms of the related letter of transmittal and other appropriate documents (which documents, as amended or supplemented from time to time, are referred to herein collectively as the “Offer Documents”). The Parent and the Merger Subsidiary further agree to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities Laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder and any other applicable Law Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents, when filed Documents prior to their filing with the SEC SEC. Parent and on the date first published, sent or given Merger Subsidiary agree to the stockholders of provide the Company, shall not contain and to consult with the Company and its counsel regarding, any untrue statement of a material fact comments that may be received from the SEC or omit to state any material fact required to be stated therein its staff (whether written or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation oral) with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)promptly after receipt thereof and any responses thereto. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case case, as and to the extent required by applicable U.S. federal securities laws. Law.
(c) The Company and its counsel initial scheduled expiration date of the Offer shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC 20 Business Days after the date hereof and (B) on any correspondence with of its commencement. Notwithstanding the SEC (including comment response letters) concerning the Offer or the Offer Documentsforegoing, 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 have the right to extend the Offer (i) from time to time if, at any scheduled or extended expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or waived; provided that if any of the conditions to the Offer are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A hereto is not satisfied or waived as a result of the occurrence of any of the events described in subparagraph (b) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the written request of the Company if such conditions or condition could reasonably be expected to be satisfied on or before July 31, 2004, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable Law, (iii) on one or more occasions (all such occasions aggregating not more than 20 Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, represents more than 50% but less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent’s decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (c) and (e) (excluding any wilful or intentional breach of any material obligation of the Company) on Annex A and of its counsel with right to terminate the Agreement under Sections 8.01(b), (d) (unless there has been a wilful or intentional breach of any written material obligation by the Company), (i) or oral comments Parent(j), (iv) on up to two occasions (for a period not to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or any extended expiration date of the Offer, and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate (collectively, the “Subsequent Period”) pursuant to Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer Documents promptly, but in no event later than twenty-four hours, as soon as possible after the receipt of such comments, and, subject expiration thereof; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the provisions hereofOffer.
(e) The Offer Price may be increased by the Parent without the consent of the Company, promptly respond to such commentsin which case the Offer shall be extended, without the consent of the Company, as required by applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Forest Oil Corp), Merger Agreement (Wiser Oil Co)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 7.1, as promptly as practicable after the date hereof, but in no any event later than three Business Days following within ten business days after the public announcement of the execution date of this Agreement, Merger Subsidiary Sub shall amend commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer to (i) increase for all of the purchase price to $6.50 Shares for consideration per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date consisting of the Offer shall be midnight (New York City time) Price, subject to reduction only for applicable federal back-up withholding or stock transfer taxes payable by the sellers of such Shares. The date on which Merger Sub commences the date that is ten Business Days (for this purpose calculated in accordance with Offer, within the meaning of Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments is referred to in this Agreement as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer ConditionsCommencement Date.”),
(b) As promptly after as practicable on the later of (xi) the earliest date as of which Merger Subsidiary Sub is permitted under applicable Law Laws to accept for payment Shares tendered pursuant to the Offer Offer, and (yii) the earliest date as of which each of the conditions set forth in Annex A hereto (the “Offer Conditions has Conditions”) shall have been satisfied, satisfied or waived by Parent or Merger Subsidiarywaived, Merger Subsidiary Sub shall (and Parent Purchaser shall cause Merger Subsidiary Sub to) consummate the Offer in accordance with its terms and accept for payment each Share validly all Shares 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) for each Share validly tendered and not properly withdrawn pursuant to validly withdrawn) (the Offerdate of acceptance for payment, the “Acceptance Date”). The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Sub to accept for payment, payment and to pay the Offer Price (without interest) for, each Share for any Shares validly tendered and not properly withdrawn pursuant prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Agreement) shall be subject only to the satisfaction, satisfaction or waiver by Parent or Merger Subsidiary, of each of the Offer ConditionsConditions (and shall not be subject to any other conditions). As promptly as is commercially and reasonably practicable after the Acceptance Date, Merger Sub shall pay for such Shares.
(bc) Merger Subsidiary Sub expressly reserves the right to waive any of the conditions set forth in Annex A, to increase the Offer Conditions Price and to make any other changes in the terms of or conditions to the Offer; provided provided, however, that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may Merger Sub shall not, and Purchaser shall cause Merger Sub not be waivedto, (Bi) no decrease the Offer Price, (ii) change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (iii) decrease the number of Shares sought in the Offer, amends or adds (iv) impose additional conditions to the Offer, (v) extend the Offer beyond the Expiration Date (except to the extent required by Section 1.1(d) hereof), (vi) purchase any Shares pursuant to the Offer Conditions that when added to Shares owned by Purchaser and its Affiliates would represent less than the Minimum Condition or amends (vii) amend any other term or condition of the Offer in any manner adverse to the stockholders holders of the CompanyShares, in each case without the prior written consent of the Company (Csuch consent to be authorized by the Board or a duly authorized committee thereof).
(d) the expiration date shall not be Unless extended except as otherwise provided hereinin this Agreement, and (D) Merger Subsidiary shall not terminate the Offer prior to shall expire on the date (the “Expiration Date”) that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date. If, at any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the CompanyOffer, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub’s obligation to accept Shares for payment (including, without limitation, the Offer Minimum Condition) shall not be satisfied or waived, from Merger Sub shall, and Purchaser shall cause Merger Sub to, extend the Offer beyond the then applicable expiration date thereof for a time period ending no later than the Outside Date and reasonably necessary to time until permit such conditions are satisfied (other than conditions which by their nature are condition to be satisfied on in increments of not more than ten business days each. Notwithstanding the Acceptance Date) or waived; and (y) foregoing, Merger Subsidiary shall Sub may, without the consent of the Company, extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of published by the U.S. United States Securities and Exchange Commission (the “SEC”) ), or the Nasdaq Global Market staff thereof, which is applicable to the Offer; provided that . The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate accordance with this Agreement) but only if this Agreement pursuant to is validly terminated in accordance with Section 11.01(b)(i), in which case 7 hereof.
(e) If the Acceptance Date occurs but Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration Sub does not acquire at least 90% of the Offershares of Common Stock then outstanding, Merger Subsidiary Sub shall, if requested by the Company, or may, in its sole discretionand Purchaser shall cause Merger Sub to, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 under the Exchange Act of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, not less than ten business days nor more than 20 business days; provided that Merger Subsidiary Sub shall, and Parent Purchaser shall cause it Merger Sub to, accept for payment immediately and pay for, as promptly as practicable after the expiration of the Offer, for all Shares (1) validly tendered during the initial offering period and not withdrawn pursuant to accept immediately and pay promptly for all Shares tendered during such subsequent offering period, in each case in accordance with Rule 14d-11 under the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Exchange Act.
(cf) As promptly as practicable after On the date hereofOffer Commencement Date, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Purchaser and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO, which TO shall include a revised offer contain or incorporate by reference the Offer to purchase Purchase and form forms of the related letter of transmittal reflecting the terms and conditions set forth in this Agreement all other ancillary Offer documents (collectively, together with any all amendments or and supplements thereto, the “Offer Documents”), . Purchaser and (ii) Merger Sub shall cause the Offer Documents to be made available to the holders of the Shares as and to the extent required by applicable U.S. federal securities laws. Purchaser and Merger Sub, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first publishedone hand, sent or given to the stockholders of and the Company, 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 on the statements thereinother hand, in light of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees will promptly to correct any information respectively provided by it or any of its Affiliates 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 any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to Merger Sub will cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated made available to holders of the Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on upon the Schedule TO and the Offer Documents each time to Purchase before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC. In addition, Purchaser and Merger Subsidiary shall give reasonable and good faith consideration Sub agree to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any comments, whether written or oral comments Parentoral, that Purchaser or Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject comments and to consult with the provisions hereof, promptly respond Company and its counsel prior to responding to any such comments.
(g) 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 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.
Appears in 2 contracts
Sources: Merger Agreement (International Electronics Inc), Merger Agreement (Linear LLC)
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex Ithis Agreement, as promptly as practicable practicable, and in any event no more than ten (10) Business Days, after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it Merger Subsidiary to, commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Subsidiary to, and of Parent to cause Merger Subsidiary to, accept for payment and pay forfor any Shares tendered shall be subject only to the satisfaction of the conditions set forth in Annex A and to the terms and conditions of this Agreement; provided that Parent and Merger Subsidiary may waive any of the conditions to the Offer (except for the Minimum Tender Condition which may not be waived without the prior written consent of the Company) and may make changes in the terms and conditions of the Offer except that, as promptly as practicable after without the expiration prior written consent of the Company, (i) no change may be made to the form of consideration to be paid, (ii) no decrease in the Offer Price or the number of Shares sought in the Offer may be made, (iii) no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and (iv) neither Parent nor Merger Subsidiary may extend the Offer, except in accordance with Section 2.1(c).
(b) On the date of commencement of the Offer, all Shares (1) validly tendered Parent and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO (as amended and supplemented from time to time, the “Schedule TO”), which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act provisions of applicable federal securities Laws, and shall contain the rules offer to purchase relating to the Offer and regulations thereunder forms of the related letter of transmittal and other applicable Law and that appropriate documents (which documents, as amended or supplemented from time to time, are referred to herein collectively as the “Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 ”). Parent and Merger subsidiary shall have no obligation with respect Subsidiary further agree to any information in disseminate the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case Shares as and to the extent required by applicable U.S. federal securities lawsLaws. In conducting the Offer, Parent and Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.1. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to their filing with the SEC after the date hereof SEC, and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 the Company and its counsel with (i) any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel that may receive be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptlypromptly after receipt thereof and prior to responding thereto and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to these comments and to provide comments on that response (to which reasonable and good faith consideration shall be given. Each of Parent, but Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent and Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each case, as and to the extent required by Law.
(c) The initial scheduled expiration date of the Offer shall be 12:01 a.m., New York City time, on the twenty-sixth (26th) Business Day after (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) the date of its commencement (such initial date, or if and only if the expiration time and date is extended as authorized in this Agreement, such time and date as so extended, the “Expiration Date”); provided, however, that Merger Subsidiary: (i) may, at the sole discretion of Merger Subsidiary, or, if requested by the Company no later than one (1) hour after the Expiration Date, shall, from time to time extend the Offer for one or more periods of up to ten (10) Business Days each, the length of each such period to be determined by Merger Subsidiary in its sole discretion, if at the scheduled Expiration Date any of the conditions of the Offer, including the Minimum Tender Condition and the conditions and requirements set forth on Annex A (other than conditions which by their nature are to be satisfied at the closing of the Offer), shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement, provided, however, that the Merger Subsidiary shall not be required to extend the Offer if any of the conditions or requirements in paragraphs (iv)(a) or (iv)(e) of Annex A are not satisfied or if the Parent or Merger Subsidiary are then entitled to terminate this Agreement pursuant to Article VIII, (ii) shall extend the Offer for any period required by any rule, Regulation, interpretation or position of the SEC or the Stock Exchange or the staffs thereof applicable to the Offer and (iii) shall, in the event that the Marketing Period Condition is not satisfied or waived as of any then scheduled expiration of the Offer, extend the Offer to the date that is first (1st) Business Day after the scheduled end of the Marketing Period, unless the Marketing Period Condition is waived by Parent. Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the Expiration Date.
(d) Notwithstanding the above, in no event later than twenty-four hoursshall Merger Subsidiary be required to, after or shall Parent be required to cause Merger Subsidiary to, extend the receipt Offer beyond the earliest to occur of such comments, and, subject (x) the valid termination of this Agreement in compliance with Section 8.1 and (y) the End Date (as defined in Section 8.1(b)(i)). In no event shall Merger Subsidiary extend the Offer beyond the End Date without the consent of the Company. The Offer may not be terminated prior to its scheduled Expiration Date (as it may be extended in accordance with this Agreement) unless this Agreement is terminated in accordance with Section 8.1.
(e) Parent shall provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the provisions hereofOffer and shall cause Merger Subsidiary to fulfill all of its covenants, promptly respond to such commentsagreements and obligations in respect of the Offer and this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Wabash National Corp /De), Merger Agreement (Supreme Industries Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 8.01, as promptly as practicable after and in any event within one Business Day following the date hereofhereof (or such later date as the parties may mutually agree in writing), but in no event later than three Business Days following Merger Sub (i) shall amend the public announcement of Offer to reflect the execution of this Agreement, Merger Subsidiary (ii) shall amend file an amendment to its Schedule TO, which amendment shall include an amended offer to purchase, form of transmittal letter, form of notice of guaranteed delivery and all other necessary documents and exhibits with the Offer to (i) increase the purchase price to $6.50 per Share Securities and Exchange Commission (the “Offer PriceSEC”)) and make all deliveries, net filings, publications, mailings and telephonic notices required to the seller be made in cash, (ii) provide that the conditions to connection with the Offer shall under the Federal securities laws, including Regulations 14D and 14E of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”) (such documents filed or required to be as set forth in Annex I filed with the SEC and that no such other conditions shall applyfilings, deliveries, mailings and notices, collectively and together with any amendments, exhibits or supplements thereto, the “Offer Documents”) and (iii) provide that shall use its reasonable best efforts to consummate the expiration date Offer. Parent will cause Merger Sub to accept for payment and pay for any shares of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform Company Common Stock tendered pursuant to the requirements of this Agreement. The Offer shall be Offer, subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn, a such number of Shares shares of Company Common Stock that, together with when added to the Shares then shares of Company Common Stock already owned by Parent and or any of its AffiliatesSubsidiaries, represents would constitute at least a majority of the total number shares of Shares Company Common Stock outstanding determined on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable Fully Diluted Basis on the date of expiration of the Offer (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to hereto (together with the terms and conditions of this AgreementMinimum Condition, including the prior satisfaction or waiver of the conditions set forth in Annex I (collectively, the “Tender Offer Conditions”).
(b) Without the prior written consent of the Company, promptly after Merger Sub shall not (and Parent shall cause Merger Sub not to) decrease the later Offer Price or change the form of (x) consideration payable in the earliest date as Offer, decrease the number of which Merger Subsidiary is permitted under applicable Law shares of Company Common Stock sought to accept for payment Shares tendered pursuant be purchased in the Offer, impose additional conditions to the Offer and (y) the earliest date as of which each or amend any other term of the Offer in a manner that is adverse to the holders of shares of Company Common Stock, except as provided in this Agreement. The Offer shall remain open until the date that is five Business Days after the amendment of the Offer (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended as may be required by applicable Law or in accordance with the immediately following sentence, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that Merger Sub may (or, at the Company’s option, if at least 80% of the outstanding shares of Company Common Stock on a Fully Diluted Basis have been tendered and accepted for payment by Merger Sub, shall) provide for a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act (including the obligations that Merger Sub immediately accept and promptly pay for all shares of Company Common Stock tendered during the initial offering period and immediately accept and promptly pay for any shares of Company Common Stock tendered during such subsequent offering period). If, at any Expiration Date, any of the Tender Offer Conditions has been satisfied, are not satisfied or waived by Parent or Merger SubsidiarySub, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate extend the Offer from time to time, each such extension not to exceed such number of days that Merger Sub reasonably believes is necessary to cause the Tender Offer Conditions to be satisfied (but in accordance with its any event not more than 15 Business Days for all such extensions, unless, in each case, the parties shall otherwise mutually agree in writing). Under no circumstances shall Parent or Merger Sub waive the Minimum Condition. Subject to the terms of the Offer and this Agreement and the satisfaction of the Tender Offer Conditions as of any Expiration Date, including the Minimum Condition, Parent will cause Merger Sub to accept for payment each Share and pay for any and all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer and promptly following after such Expiration Date, regardless of the acceptance number of Shares shares of Company Common Stock tendered in the Offer (such date as Merger Sub shall be obligated to accept for payment pursuant to the Offer pay the Offer Price (without interest) for each Share any and all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”). For the avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, Merger Sub shall not (and Parent shall cause Merger Sub not to) accept for payment any shares of Company Common Stock tendered pursuant to the Offer unless the Minimum Condition shall have been satisfied.
(c) As promptly as practicable after Each of Parent and Merger Sub, on the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shallone hand, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 on the statements thereinother hand, in light of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct promptly 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 it shall have become false or misleading in any material respect. respect and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable U.S. federal Federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed in advance of their filing with the SEC after and dissemination to stockholders of the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselCompany. Parent and Merger Subsidiary Sub shall provide to the Company and its counsel with copies in writing of any written or comments and shall inform the Company of any oral comments that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject . The Company and its counsel shall be given a reasonable opportunity to the provisions hereof, promptly respond to review any such commentswritten and oral comments and proposed responses.
Appears in 2 contracts
Sources: Merger Agreement (Iron Acquisition Corp), Merger Agreement (Engelhard Corp)
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with its terms and (ii) the Company shall have occurred that would give rise complied with its applicable obligations under Section 1.4, Parent shall use its reasonable best efforts to a right cause Bid Sub to terminate commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer pursuant to any of at the conditions set forth in Annex I, Offer Price as promptly as practicable after the date hereofreasonably practicable, but in no event later than three ten (10) Business Days following the public announcement effectiveness of the execution Parent Registration Statement. For the avoidance of this Agreementdoubt, Merger Subsidiary shall amend Parent may consummate the Offer through Bid Sub, its wholly-owned Subsidiary.
(b) The obligation of Bid Sub (and Parent’s obligation to (icause Bid Sub) increase to accept for exchange, and exchange the purchase price to $6.50 per Share (the “Offer Price”)Price for, net to the seller in cash, (ii) provide that the conditions any Company Common Shares tendered pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, subject only to (iiii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer (other than Company Common Shares tendered by guaranteed delivery where actual delivery has not occurred), prior to the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Common Shares that, together with the any Company Common Shares then directly or indirectly owned by Parent and its AffiliatesParent, Bid Sub or Merger Sub, represents a majority at least 90% of all outstanding Company Common Shares (excluding shares held by the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable Company) (the “Minimum Condition”) and to (ii) the other conditions set forth in Annex I A (the Minimum Condition and such other conditions collectively referred to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (herein as the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer . Parent and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Bid Sub expressly reserves reserve the right in their sole and absolute discretion to waive any of the Offer Conditions (if such waiver is permitted hereunder) and to make any other changes in modify the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld unless previously approved in writing by the Company in its the Company’s sole and absolute discretion) , (A) the Minimum Condition may not be amended or waived (provided that if all the conditions in Annex A (other than the Minimum Condition and conditions that shall be satisfied on the Closing Date) have been satisfied or (if such waiver is permitted hereunder) waived, Parent may elect, in its sole and absolute discretion, to waive the Minimum Condition down to 66 2/3% of all outstanding Company Common Shares (excluding shares held by the Company)), (B) no change may be made that changes the form of consideration to be paid, paid or decreases the price cash per Share Company Common Share, the number of Company Common Shares sought in the Offer or the number of Parent Shares sought per Company Common Share and (C) no change may be made that amends in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any a manner adverse to the stockholders holders of Company Common Shares (which, for the avoidance of doubt, shall not include any waiver of the CompanyMinimum Condition other than in accordance with the proviso in clause (A)), or adds to, the Offer Conditions, provided, that Bid Sub may change the amount of Cash Consideration and Stock Consideration offered as contemplated by and in accordance with this Agreement and (C) except as set forth in Section 1.1(c), the expiration date shall Offer may not be extended.
(c) Unless extended except as otherwise provided hereinpursuant to and in accordance with the terms of this Agreement, and (D) Merger Subsidiary shall not terminate the Offer prior shall expire at 10:00 a.m., New York City time, on the twenty-first (21st) Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced. Subject to any scheduled expiration date except in the event that this Agreement is terminated pursuant to parties’ respective termination rights under Section 11.01. Notwithstanding the foregoing9.1 (if applicable), (xi) Merger Subsidiary shall (or at the request of the Companyif, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer, any Offer any Condition has not been satisfied or waived (if such waiver is permitted hereunder), Bid Sub shall (and Parent shall cause Bid Sub to) extend the Offer for successive periods of ten (10) Business Days each or such other number of Business Days as the parties may agree in order to permit the satisfaction of such Offer Conditions, until the earlier to occur of (x) the satisfaction or waiver (if such waiver is permitted hereunder) of all of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; Conditions and (y) Merger Subsidiary the End Date (as may be extended pursuant to Section 9.1(c)), and (ii) Bid Sub shall (and Parent shall cause Bid Sub to) extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or its staff or the Nasdaq Global Market New York Stock Exchange (including any successor exchange, “NYSE”) applicable to the Offer; provided that in no event shall Merger Subsidiary be Offer or any period 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 Dateby applicable Law. Following the expiration of the Offer, Merger Subsidiary shall, if requested by the Company, Bid Sub may elect to provide one or may, in its sole discretion, provide a more subsequent offering period periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 ActExchange Act and in compliance with all other provisions of applicable Law. The Offer Price payable in respect of each Company Common Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid to the holder thereof in cash and Parent Shares, subject to reduction for any applicable withholding Taxes.
(d) Subject to the foregoing, including the requirements of Rule 14d-11, foregoing and other applicable Law and upon the terms of and subject to the conditions of the Offer, Merger Subsidiary shall, Bid Sub shall (and Parent shall cause it Bid Sub to, ) accept for payment exchange, as promptly as permitted under applicable securities Law, and exchange and pay for, or cause to be exchanged and paid for, (after giving effect to any required withholding Tax), as promptly as practicable after the expiration date on which Bid Sub first accepts Company Common Shares for exchange pursuant to the Offer (the date and time of such first acceptance, regardless of any Subsequent Offering Periods pursuant to Rule 14d-11 of the OfferExchange Act, the “Acceptance Time”), all Company Common Shares (1i) validly tendered and not withdrawn pursuant to the Offer and or (2ii) validly tendered in the any such Subsequent Offering Period (Period. Notwithstanding the date on which immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Parent and Bid Sub expressly reserve the right to delay exchanges of Company Common Shares are first accepted for payment, 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 “Acceptance Date”)Exchange Act.
(ce) As promptly No fraction of a Parent Share shall be issued in connection with the Offer, no dividends or other distributions with respect to Parent Shares shall be payable on or with respect to any such fractional share interest, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a shareholder of Parent. In lieu thereof, each tendering Company shareholder who would otherwise be entitled to a fractional Parent Share (after aggregating all fractional Parent Shares that otherwise would have been received by such Company shareholder) shall, upon surrender of (i) certificates registered in the name of such shareholder and representing outstanding Company Common Shares (each, a “Company Certificate”) or (ii) evidence of uncertificated shares of Company Common Shares represented by book-entry (each, a “Book-Entry Share”), in each case, be entitled to receive an amount of cash (without interest and subject to the amount of any withholding taxes as practicable after contemplated by Section 3.2(i)) rounded to the nearest whole cent determined by multiplying (i) the Acceptance Time Parent Share Price by (ii) the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that such cash payment 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.
(f) The Company agrees that no Company Common Shares held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) On the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, Parent and Bid Sub shall (and Parent shall cause its Affiliates Bid Sub to, (i) file with the SEC an amendment 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, which ”) that shall include a revised contain an offer to purchase exchange and a form of related letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the Parent Registration Statement and such other ancillary documents as may be required, the “Offer Documents”). Parent and Bid Sub agree to use reasonable best efforts to, as promptly as practicable on the date of commencement of the Offer: (x) cause the Offer Documents to be disseminated to the Company’s shareholders as and (ii) to the extent required by applicable U.S. federal and, if applicable, Canadian securities lawsLaws and the Swiss Code of Obligations, cause (y) deliver a copy of the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act and (z) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail a copy of the Offer Documents to the NYSE in accordance with Rule 14d-3(a) promulgated under the Exchange Act. The Company shall promptly furnish to Parent and Bid Sub in writing all information concerning the Company, its directors, officers and Affiliates as may be required by applicable securities Law or reasonably requested by Parent or Bid Sub for inclusion in the Schedule TO or the other Offer Documents. Parent and Bid Sub shall (and Parent shall cause Bid Sub to) use their reasonable best efforts to: (x) cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with (A) the 1934 Securities Act and the Exchange Act, (B) the rules and regulations thereunder of the NYSE and other applicable Law the TSX, (C) the rules and that regulations of FINRA and (D) the Swiss Code of Obligations, in each case, as applicable. If at any time before consummation of the Offer Parent shall become aware that there has occurred an event that is required to be set forth in an amendment to the Schedule TO or in a supplement to the other Offer Documents, when filed : (1) Parent shall promptly prepare such an amendment or supplement; and (2) Parent shall promptly file with the SEC and on the date first published, sent or given distribute to the stockholders shareholders of the Company, shall not contain any untrue statement of a material fact Company such amendment or omit to state any material fact required to be stated therein or necessary in order to make the statements thereinsupplement, in light each case, as and to the extent required by applicable federal securities Law and the Swiss Code of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)Obligations. Each of Parent, Merger Subsidiary Bid 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 other Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary The Company and Parent will, and will cause their respective Representatives to, reasonably cooperate with the other in the preparation of the Schedule TO and the other Offer Documents. Without limiting the generality of the foregoing, Parent shall, and shall cause its Affiliates Representatives to, use their respective reasonable best efforts to cause provide the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given Representatives with a reasonable opportunity opportunity, in advance of initial filing or any amendment or filing of any supplement thereto, to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the other Offer Documents, and Merger Subsidiary . Parent shall give reasonable and good faith consideration to any comments made by promptly notify the Company and its counsel. Parent and Merger Subsidiary shall provide in writing of the Company and its counsel with receipt of any written or oral comments Parent, Merger Subsidiary from or their respective Affiliates or counsel may receive from other correspondence with the SEC or its staff with respect to the Schedule TO or the other Offer Documents promptlyand any request by the SEC or its staff for amendments or supplements to the Schedule TO or the other Offer Documents or for additional information and shall promptly supply the Company with copies of all correspondence between it and any of its Representatives or Affiliates, but on the one hand, and the SEC or its staff, on the other hand, with respect to the Schedule TO or the other Offer Documents.
(h) Parent shall provide or cause to be provided to the Exchange Agent in no accordance with Section 3.2 the funds and Parent Shares necessary to accept for payment, and pay for, any Company Common Shares that Bid Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(i) If, between the date hereof and the date on which any Company Common Share is accepted for payment and paid for pursuant to the Offer, the Company Common Shares are changed (or a record date for such change occurs) into a different number or class of shares by reason of any stock split, stock dividend, reclassification, recapitalization or other similar transaction, then the Offer Price shall be appropriately and proportionately adjusted, taking into account the record and payment or effective dates, as the case may be, for such transaction.
(j) If, between the date hereof and the date on which any Company Common Share is accepted for payment and paid for pursuant to the Offer, the outstanding Parent Shares are changed (or a record date for such change occurs) into a different number or class of shares by reason of any division or subdivision of shares, stock dividend, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall be appropriately and proportionately adjusted, taking into account the record and payment or effective dates, as the case may be, for such transaction.
(k) Unless this Agreement is terminated pursuant to Section 9.1, Bid Sub shall not (and Parent shall cause Bid Sub not to) terminate or withdraw the Offer prior to any scheduled expiration date without the prior written consent of the Company in its sole and absolute discretion, except that in the event later than this Agreement is terminated pursuant to Section 9.1, Bid Sub shall (and Parent shall cause Bid Sub to) promptly (and in any event within twenty-four (24) hours, after ) following such termination irrevocably and unconditionally terminate the receipt of such comments, and, subject Offer and shall not acquire any Company Common Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the provisions hereofpurchase of Company Common Shares in the Offer, Bid Sub shall (and Parent shall cause Bid Sub to) promptly respond return, or cause any depositary acting on behalf of Bid Sub to such commentsreturn, all tendered Company Common Shares to the tendering shareholders of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Fairfax Financial Holdings LTD/ Can), Merger Agreement (Allied World Assurance Co Holdings, AG)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise been terminated in accordance with Section 7.1, Merger Sub shall, and Parent shall cause Merger Sub to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, (i) as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend and in any event within three Business Days following the date of this Agreement (or such other later date as the parties may mutually agree in writing) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) the Offer to (i) increase purchase all outstanding Shares at the purchase price to $6.50 per Per Share (the “Offer Price”), Amount. The Per Share Amount shall be net to the seller in cash, (ii) provide that subject to reduction only for any applicable federal backup withholding or stock transfer taxes payable by the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreementseller. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation obligations of Merger Subsidiary (Sub to, and of Parent to cause Merger Subsidiary) to Sub to, accept for payment, payment and to pay the Offer Price (without interest) for, each Share validly for any Shares tendered and not properly withdrawn pursuant to the Offer shall be subject to only those conditions set forth in Annex III (the “Tender Offer Conditions”). The Company agrees that no Shares held by the Company or any of its Subsidiaries (other than any Shares held on behalf of third parties) will be tendered pursuant to the satisfactionOffer. For the avoidance of doubt, or waiver the parties hereto agree that Restricted Shares may be tendered in the Offer and be acquired by Parent or Merger Subsidiary, of each of Sub pursuant to the Offer ConditionsOffer.
(b) Parent on behalf of Merger Subsidiary Sub expressly reserves the right from time to time, subject to Sections 1A.1(c) and (d), to waive any of Tender Offer Condition or increase the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; Per Share Amount, provided that without the prior written consent of the Company Company, Merger Sub shall not, and Parent shall cause Merger Sub not to (which consent may be granted i) decrease the Per Share Amount or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (ii) decrease the number of Shares sought to be purchased in the Offer, amends (iii) amend or adds waive satisfaction of the Minimum Condition (as defined in Annex III), (iv) impose additional conditions to the Offer, (v) make any change in the Offer that would require an extension or delay of the then-current Expiration Date (other than an increase in the Per Share Amount), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, other than the Minimum Condition) or amends (vii) modify or amend any other term of the Offer Offer, in the case of this clause (vii), in any manner (A) adverse to the stockholders holders of the CompanyShares or (B) which would reasonably be expected to result in, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except individually or in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoingaggregate, (x) Merger Subsidiary shall (or at the request of the Company, a Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Material Adverse Effect.
(c) As promptly as practicable after On the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Parent and Merger Subsidiary shall, and Sub shall file or cause its Affiliates to, (i) file to be filed with the SEC an amendment a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Schedule TO, Offer which shall include a revised contain the offer to purchase (the “Offer to Purchase”) and form of related letter of transmittal reflecting and summary advertisement and other ancillary Offer documents and instruments pursuant to which the terms and conditions set forth in this Agreement Offer will be made (collectively, together collectively with any supplements or amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary Sub and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company each 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 it shall have become false or misleading in any material respect. respect and Merger Subsidiary Sub shall, and shall Parent further agrees to cause its Affiliates Merger Sub to, use their respective reasonable best efforts 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 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 (A) 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 after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC. Merger Sub shall, and Parent agrees to cause 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 to, provide the Company with (in writing, if written), and its counsel to consult with the Company regarding, any comments (written or oral comments oral) that may be received by Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptlyas promptly as practicable after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses.
(d) The Offer to Purchase shall provide for an expiration date of the 20th Business Day (as defined in Rule 14d-1 under the Exchange Act, “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 terms of this agreement, the “Expiration Date”). Merger Sub shall not and Parent agrees that it shall cause Merger Sub to not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, Merger Sub may, without Parent receiving the consent of the Company, (A) extend the Expiration Date for any period required by applicable rules and regulations of the SEC or the New York Stock Exchange applicable to the Offer or (B) elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the Exchange Act. So long as the Offer and this Agreement have not been terminated pursuant to Section 7.1, if at any scheduled Expiration Date, the Tender Offer Conditions shall not have been satisfied or earlier waived, Merger Sub shall, and Parent shall cause Merger Sub to extend the Offer and the Expiration Date to a date that is not more than five Business Days after such previously scheduled Expiration Date; provided that Merger Sub shall not and Parent shall not be required to cause Merger Sub to extend the Offer beyond the End Date. In the event the Acceptance Date occurs but Parent does not acquire a sufficient number of Shares to enable a Short Form Merger to occur, Merger Sub shall, and Parent shall cause Merger Sub to provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 15 Business Days, in no event later than twenty-four hoursaccordance with Rule 14d-11 under the Exchange Act; provided that Merger Sub shall, and Parent shall cause Merger Sub to immediately accept and promptly pay for all Shares tendered during the initial offering period and immediately accept and promptly pay for all Shares tendered during such subsequent offering period, in each case in accordance with Rule 14d-11 under the Exchange Act.
(e) Subject solely to the satisfaction or waiver by Merger Sub in accordance with Section 1A.1(b) of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub, as soon as possible after the receipt expiration of such commentsthe Offer, and, subject to accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the provisions hereofOffer (the date of acceptance for payment, promptly respond the “Acceptance Date”). Parent shall provide or cause to such commentsbe 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.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Elkcorp), Agreement and Plan of Merger (CGEA Investor, Inc.)
The Offer. (a) Provided that nothing shall have occurred that would give rise At all times prior to a right to terminate the Offer pursuant to any end of the conditions set forth in Annex IRevolving Period, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to TUC shall:
(i) increase cause Bidco, until the purchase price to $6.50 per Share (earlier of the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to date the Offer shall be as set forth in Annex I and that no other conditions shall applylapses or is finally closed, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 City Code, the Financial Services Act ▇▇▇▇ (▇▇) and the Companies Act and the rules all other applicable laws and regulations thereunder and other applicable Law and relevant in the context of the Offer;
(ii) cause Bidco to provide the Administrative Agent with such information regarding the progress of the Offer as it may reasonably request and, provided no breach
(iii) not cause or permit Bidco to declare the Offer unconditional at a level of acceptances below that required by Rule 10 of the City Code;
(iv) cause Bidco to ensure that at no time shall circumstances arise whereby a mandatory offer is required to be made by the terms of Rule 9 of the City Code in respect of the Target Shares;
(v) not cause or permit Bidco, without the prior consent of the Administrative Agent (acting on the instructions of the Required Lenders), to waive, amend or agree or decide not to enforce, in whole or in part, the conditions of the Offer set out in paragraph (c) (Referral) of Appendix 1 to the Offer Press Release;
(vi) not cause or permit Bidco, without the prior consent of the Administrative Agent (acting on the instructions of the Required Lenders), such consent not to be unreasonably withheld or delayed, to waive, amend (but not including extending the Offer period, which shall be at Bidco's discretion provided that the Offer Documentsis closed within the period required by paragraph (ix) below of this Section 5.14) or agree or decide not to invoke, when filed with the SEC and on the date first publishedin whole or in part, sent or given to the stockholders in any material respect, any of the Companyother material conditions of the Offer (and the Borrowers acknowledge that the total indebtedness of the TEG Group requiring to be refinanced, and the amount of any contingent liabilities of the TEG Group which would or might crystallize upon the Offer becoming unconditional, are material), provided that TUC shall not contain be in breach of this paragraph (vi) if it fails to cause Bidco to invoke a condition of the Offer because the Takeover Panel has directed that Bidco may not do so;
(vii) cause Bidco to keep the Joint Lead Arrangers informed and consult with them as to:
(A) the terms of any untrue statement of a material fact undertaking or omit to state any material fact required assurance proposed to be stated therein or necessary in order to make the statements thereingiven by it, in light of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in or any member of the Schedule TO and the Offer Documents if and TEG Group to the extent that such information shall have become false Director General of Electricity Supply, the Director General of Gas Supply or misleading the Secretary of State for Trade and Industry in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed connection with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and Offer;
(B) on the terms of any correspondence modification to any of the Licenses proposed in connection with the SEC Offer; and
(including comment response lettersC) concerning the Offer or the Offer Documents, 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 terms proposed in connection with any written authorization or oral comments Parent, Merger Subsidiary determination necessary or their respective Affiliates or counsel may receive from appropriate in connection with the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.Offer;
Appears in 2 contracts
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Texas Utilities Co /Tx/), 364 Day Competitive Advance and Revolving Credit Facility Agreement (Tu Acquisitions PLC)
The Offer. (a) Provided that nothing none of the events set forth in Exhibit A hereto shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iand be continuing, as promptly as practicable after the date hereof, (but in no any event not later than three Business Days following five business days after the public announcement of the execution and delivery of this Agreement), Merger Subsidiary Sub shall amend commence (within the Offer to (i) increase meaning of Rule 14d-2 under the purchase price to $6.50 per Share Securities Exchange Act of 1934, as amended (the “Offer Price”"Exchange Act")), an offer to purchase (the "Offer") all outstanding shares of the Company Common Stock at a price of $12.00 per share, net to the seller in cashcash (the "Offer Consideration"). The obligation of Parent and Sub to commence the Offer, consummate the Offer, accept for payment and to pay for shares of Company Common Stock validly tendered in the Offer and not withdrawn shall be subject only to those conditions set forth in Exhibit A hereto.
(b) Parent and Sub expressly reserve the right to amend or modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (and Parent shall not cause Sub to)
(i) decrease the Offer Consideration or the form of consideration therefor or decrease the number of Shares sought pursuant to the Offer, (ii) provide that change, in any material respect, the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall applyOffer, (iii) provide that impose additional material conditions to the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmentOffer, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to waive the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of time the Offer and not withdrawn, expires a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority shares of Company Common Stock which constitutes at least 65% of the total number of Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully- diluted basis" having the following meaning, without regard as of any date: the number of shares of Company Common Stock outstanding, together with Shares which the Company may be required to whether issue pursuant to options, warrants or other obligations outstanding at that date), (v) extend the expiration date of the Offer (except that Sub may extend the expiration date of the Offer (a) as required by law or (b) for such periods as Sub may reasonably deem necessary (but not to a date later than the 45th calendar day after the date of commencement) in the event that any convertible condition to the Offer is not satisfied), or exchangeable securities are then vested (vi) amend any term of the Offer in any manner materially adverse to holders of shares of Company Common Stock; provided, however, that, except as set forth above, Sub may waive any other condition to the Offer in its sole discretion; and exercisable provided further, that the Offer may be extended in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the United States Securities and Exchange Commission (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions"SEC"). Subject to the terms and conditions of this Agreement, including Assuming the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to , Sub shall accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as soon as practicable after the expiration date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsthereof.
Appears in 1 contract
Sources: Merger Agreement (Seven Up Rc Bottling Company of Southern California Inc)
The Offer. (a) Not later than the first business day after the date of this Agreement, ACQUIROR, Acquisition Subsidiary and EKCO 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 that would give rise to a right to terminate or be existing, Acquisition Subsidiary shall commence, in accordance with the terms hereof, the Offer pursuant and ACQUIROR shall cause Acquisition Subsidiary to any commence, within the meaning of Rule 14d-2 under the conditions set forth in Annex IExchange Act, as amended, including the rules and regulations promulgated thereunder (the "Exchange Act"), the Offer as promptly as reasonably practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to five (i5) increase the purchase price to $6.50 per Share business days (the “Offer Price”), net to the seller as such term is defined in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-1 under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later initial public announcement of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law Acquisition Subsidiary's intention to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to commence the Offer. The obligation of Merger Acquisition Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, payment and pay the Offer Price (without interest) for, each Share validly for EKCO Shares tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, satisfaction or waiver (other than a waiver of the Minimum Condition requirement) of the conditions set forth in ANNEX A hereto (unless the failure of any such condition was caused by Parent any material breach by ACQUIROR or Merger SubsidiaryAcquisition Subsidiary of this Agreement in which case Acquisition Subsidiary shall be obligated to accept for payment and pay for EKCO Shares tendered pursuant to the Offer provided that such failure has been waived by EKCO), including the condition that a number of EKCO Shares representing that number of EKCO Shares which would equal more than fifty percent (50%) of the voting power (determined on a fully-diluted basis), of each all the securities of EKCO entitled to voted generally in a merger shall have been validly tendered and not withdrawn prior to the expiration date of the Offer Conditions.
(b) Merger the "Minimum Condition"). Acquisition Subsidiary expressly reserves the right to waive any of such condition, to increase the Offer Conditions Per Share Amount and to make any other changes in the terms and conditions of or conditions to the Offer; provided that PROVIDED, HOWEVER, that, without the prior written consent of EKCO, Acquisition Subsidiary will not (i) decrease the Company Per Share Amount below $7.00 (which consent may be granted or withheld by ii) reduce the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form minimum number of consideration EKCO Shares to be paid, decreases the price per Share or the number of Shares sought purchased in the Offer, amends (iii) change the form of the consideration payable in the Offer (other than by adding consideration), (iv) add to, modify or adds supplement the conditions to the Offer Conditions or amends any other term of the Offer set forth in any manner adverse to the stockholders of the CompanyANNEX A hereto, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary tov) extend the Offer if at the scheduled or extended expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein or (vi) make any other change in the terms or conditions of the conditions Offer which is materially adverse to the Offer shall not be satisfied holders of EKCO Shares, it being agreed that a waiver by Acquisition Subsidiary of any condition in whole or waived, in part (other than the Minimum Condition) at any time and from time to time until such conditions are satisfied (other than conditions which by their nature are in its discretion shall not be deemed to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for materially adverse to any period required by any rule, regulation, interpretation or position holder of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End DateEKCO Shares. Following expiration of the Offer, Merger Subsidiary The Per Share Amount shall, if requested by the Companysubject to any applicable withholding of taxes, or maybe net to each seller in cash, 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, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Merger Acquisition Subsidiary shall, and Parent ACQUIROR shall cause it Acquisition Subsidiary to, accept for payment and pay forpay, as promptly as practicable after the expiration of the Offer, for all EKCO Shares (1) validly tendered and not withdrawn withdrawn; provided, that Acquisition Subsidiary shall have the right, in its sole discretion, to extend the Offer from time to time for up to a maximum of 15 business days, notwithstanding the prior satisfaction of the conditions contained in ANNEX A if on such expiration date there shall not have been tendered that number of EKCO Shares which would equal more than 90% of the issued and outstanding EKCO Shares (the "15 Day Right") and provided further, that if Acquisition Subsidiary shall extend the Offer pursuant to the Offer 15 Day Right, Acquisition Subsidiary shall waive during such 15 business days all conditions set forth in ANNEX A other than the Minimum Condition and the conditions set forth in paragraphs (a), (b) and (2d) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).ANNEX A.
(c) As promptly as practicable after On the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger ACQUIROR and Acquisition Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO14D-1, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement including all exhibits thereto (collectively, together with any all amendments or and supplements thereto, the “"Schedule 14D-1"), with respect to the Offer. The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the forms of related Letters of Transmittal as well as all other information and exhibits required by law (the Schedule 14D-1, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents”"), and (ii) to the extent required by applicable U.S. federal securities laws, cause the . The Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act and provisions of applicable federal securities laws and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date filed with the SEC and on the date first published, sent or given to the stockholders of the CompanyEKCO'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 Parent no representation is made by ACQUIROR and Merger subsidiary shall have no obligation Acquisition Subsidiary with respect to information supplied by EKCO for inclusion in the Offer Documents. ACQUIROR, Acquisition Subsidiary and EKCO shall correct promptly any information provided by any of them for use in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respect. Merger Subsidiary shallmisleading, and ACQUIROR and Acquisition Subsidiary shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to cause the Schedule TO 14D-1, as so corrected corrected, to be filed with the SEC and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of EKCO Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company EKCO and its counsel shall be given a the reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC after the date hereof SEC. ACQUIROR and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Acquisition Subsidiary shall provide the Company EKCO and its counsel with a copy of any written comments or telephonic notification of any oral comments Parent, Merger ACQUIROR or Acquisition Subsidiary or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject thereof. In the event that ACQUIROR or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the provisions 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.
(i) Subject to the terms and conditions hereof, promptly respond the Offer shall initially remain open until midnight, New York City time, on the date that is twenty (20) business days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the "Initial Expiration Date").
(ii) If Acquisition Subsidiary does not consummate the Offer on the Initial Expiration Date due to the failure of one or more conditions in ANNEX A to be satisfied, Acquisition Subsidiary shall extend the Offer one or more times until the earlier of (x) 11:59 p.m. New York time on the 60th calendar day after the date of this Agreement or (y) two business days after such commentstime as such condition or conditions are satisfied or waived; PROVIDED that Acquisition Subsidiary shall not be obligated to extend the Offer pursuant to this sentence if the condition that has not been satisfied is not reasonably capable of being satisfied at or prior to the time referred to in clause (x) above; provided, further, that nothing herein shall prohibit Acquisition Subsidiary from exercising its 15 Day Right.
(iii) If Acquisition Subsidiary does not consummate the Offer on or prior to the 60th calendar day after the date of this Agreement due to the failure of one or more conditions in ANNEX A to be satisfied, and if such unsatisfied condition or conditions are reasonably capable of being satisfied, Acquisition Subsidiary shall, at the request of EKCO, extend the Offer one or more times until the earlier of (x) 11:59 p.m. New York time on the 120th calendar day after the date of this Agreement or (y) two business days after such time as such condition or conditions are satisfied or waived; provided, further, that nothing herein shall prohibit Acquisition Subsidiary from exercising its 15 Day Right.
(iv) If Acquisition Subsidiary does not consummate the Offer on or prior to the 60th calendar day after the date of this Agreement due to the failure of one or more conditions in ANNEX A to be satisfied, and if such unsatisfied condition or conditions are reasonably capable of being satisfied, Acquisition Subsidiary may extend the Offer one or more times until (a) the 120th calendar day after the date of this Agreement or (b) until the 180th calendar day after the date of this Agreement if the Offer shall not have been consummated solely due to the waiting period (or any extension thereof) or approvals under the HSR Act or any applicable foreign competition laws not having expired or been terminated or received.
(v) Acquisition Subsidiary may at any time transfer or assign to ACQUIROR or to one or more corporations, 80% or more of the outstanding capital stock of which is directly or indirectly owned by ACQUIROR, the right to purchase all of the EKCO Shares tendered pursuant to the Offer, but any such transfer or assignment shall not relieve ACQUIROR or Acquisition Subsidiary of its obligations hereunder or prejudice the rights of stockholders or holders of EKCO Options or EKCO Warrants to receive payment for EKCO Shares validly tendered and accepted for payment in the Offer or in the Merger or otherwise in accordance with the terms hereof. Any such assignee or transferee of Acquisition Subsidiary shall assume all of the obligations of Acquisition Subsidiary hereunder, and ACQUIROR and Acquisition Subsidiary shall amend this Agreement, at the request of EKCO, to substitute any such assignee or transferee for Acquisition Subsidiary in this Agreement.
(vi) Acquisition Subsidiary shall be obligated to consummate the Offer on the date (or no later than one business day after the date) that all of the conditions set forth in ANNEX A shall have been satisfied; provided, however, that nothing herein shall prohibit Acquisition Subsidiary from exercising its 15 Day Right.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 9.1, as promptly as practicable after the date hereof, (but in no event later than three 10 Business Days following Days) after the public announcement of the execution of this Agreementdate hereof, Merger Subsidiary Sub shall, and Parent shall amend cause Merger Sub to, commence (within the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act), the Offer.
(b) following the filing The obligations of such amendmentMerger Sub to, and (iv) make such other amendments as are necessary or appropriate of Parent to conform cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock pursuant to the requirements of this Agreement. The Offer shall be is subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver (as provided in Section 2.1(c) below) of the conditions set forth in Annex I (the “Offer Conditions”), promptly after . On the later terms and subject to the conditions of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiarythis Agreement, Merger Subsidiary shall (Sub shall, and Parent shall cause Merger Subsidiary Sub to) consummate the Offer in accordance with its terms , accept and accept pay for payment each Share all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer (the “Tendered Shares”) promptly on or after the Expiration Date (and promptly following in any event within three business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)). The acceptance of Shares for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer pay is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Price (without interest) Closing occurs is referred to in this Agreement as the “Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub on a timely basis funds necessary to purchase and pay for each Share validly tendered any and not properly withdrawn all shares of Company Common Stock that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer. The obligation of Parent and Merger Subsidiary (Sub shall, and each of Parent to cause and Merger Subsidiary) to accept for paymentSub shall ensure that all of their respective controlled Affiliates shall, and pay tender any shares of Company Common Stock held by them into the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer ConditionsOffer.
(bc) Parent and Merger Subsidiary Sub expressly reserves reserve the right to waive any of the Offer Conditions and other than the Minimum Condition, to increase the Offer Price or to make any other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided that without the prior consent of the Company (which consent may be granted that, unless otherwise provided in this Agreement or withheld previously approved by the Company in its sole discretionwriting, Parent and Merger Sub shall not: (i) (A) decrease the Minimum Condition may not be waived, (B) no Offer Price or change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends (ii) decrease the maximum number of shares of Company Common Stock subject to or adds sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions or amends amend, modify or supplement any condition in a manner adverse to the Stockholders, (iv) waive, modify or amend the Minimum Condition, (v) amend any other term of the Offer in any a manner that is materially adverse to the stockholders of Stockholders or (vi) extend or otherwise change the Company, (C) the expiration date shall Expiration Date except as required or permitted by Section 2.1(e). The Offer may not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer terminated prior to any scheduled expiration date except in the event that Expiration Date, unless this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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”) withdrawn in accordance with Rule 14d-11 of Section 9.1.
(d) On the 1934 Act. Subject to date the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the OfferOffer is commenced, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which Tender Offer Statement shall include a revised an offer to purchase and form of purchase, letter of transmittal reflecting transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), ) and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders the Stockholders to the extent required by applicable Law. The Company hereby consents to the inclusion of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they Recommendation in the Offer Documents. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and Exchange Act, the rules and regulations thereunder thereunder, and other requirements of applicable Law Law. The Company shall promptly furnish to Parent and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of Merger Sub all information concerning the Company, shall not contain any untrue statement of a material fact or omit to state any material fact the Company Subsidiary and the Stockholders that may be 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 Parent and Merger subsidiary shall have no obligation with respect to any information set forth in the Offer Documents supplied or reasonably requested in connection with any action contemplated by this Section 2.1(d), including communication of the Company or its Representatives in writing)Offer to the record and beneficial Stockholders. Each of Parent, Merger Subsidiary and the Company parties agrees to 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 false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe 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 (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselLaw. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with any written or comments (including a summary of any oral comments comments) that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the Stockholders, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents promptlyor response, but and Parent and Merger Sub shall give reasonable consideration to any comments provided by the Company. Parent and Merger Sub shall use reasonable efforts to respond promptly to any such SEC comments.
(e) Unless extended pursuant to and in no event accordance with the terms of this Agreement , the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 2.1(e), calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Agreement or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) if on the then-effective Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of not more than twenty-four hours, after 10 Business Days each (the receipt length of such commentsperiod to be determined by Parent and Merger Sub in their discretion), and, or for such longer period as the parties may agree in order to permit the satisfaction of such Offer Conditions (subject to the provisions hereofright of Parent or Merger Sub to waive any Offer Conditions, other than the Minimum Condition), and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff; provided that Merger Sub shall not in any event be required to extend the Offer beyond the Outside Date. In the event that this Agreement is terminated pursuant to Section 9.1, Merger Sub shall (and Parent shall cause Merger Sub to) promptly respond (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to such commentsthe Offer 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.
Appears in 1 contract
The Offer. (a) Provided The Company will procure that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) is made on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including set out in the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer ConditionsPress Release.
(b) Merger Subsidiary expressly reserves The Company will keep the right Administrative Agent informed as to waive any of the status of, and progress with respect to, the Offer Conditions and to make any other changes updated financial information on Target and each Target Subsidiary (as available) and, in the terms of or conditions particular, will promptly give to the Offer; provided that without Administrative Agent such information (including details as to the prior consent current level of acceptances) concerning the Company (which consent may be granted Offer or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds otherwise relevant to the Offer Conditions or amends any other term as the Administrative Agent may reasonably request and shall promptly upon receipt deliver to the Administrative Agent a copy of every certificate delivered to Bidco in connection with the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn receiving agent pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)City Code.
(c) As promptly as practicable after Without the date hereof, but in no event later than three Business Days following the public announcement prior approval of the execution Administrative Agent (the Administrative Agent's response not to be unreasonably delayed), the Company will not, and will procure that Bidco will not:
(i) waive, in whole or in part, either of this Agreementthe conditions specified in 1(B) and (C) of Appendix 1 to the Press Release relating to the UK Fair Trading Act 1973 and the US ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Anti-Trust Improvements Act of 1976; or
(ii) make any increase in the per share offer purchase price or any change in the form of consideration of the offer purchase price (each as delineated in the Press Release) or take or permit to be taken any step as a result of which such an increase or change is or may be required; and
(iii) take or permit to be taken any step which would require the Company or any of its Subsidiaries (including Bidco) to make a mandatory offer for Target within Rule 9 of the City Code.
(d) The Company will notify the Administrative Agent immediately upon becoming aware of any circumstance or event which is or could reasonably be construed as being covered by a condition of the Offer which, Merger Subsidiary if not waived, would entitle it, with the consent of the <371> Panel on Take-overs and Mergers in the United Kingdom if needed, to lapse the Offer and will consult with the Administrative Agent in relation to such event or circumstances and its intended actions.
(e) The Company will consult with the Administrative Agent before declaring the Offer unconditional as to acceptances in circumstances where it has not acquired or agreed to acquire pursuant to the Offer at least 90% in nominal value of the Target Shares to which the Offer relates (within the meaning of Section 428-430F of the Companies Act).
(f) The Company will not, and will not permit Bidco to, exercise its rights to declare the Offer unconditional as to acceptances unless it has acquired or agreed to acquire pursuant to the Offer not less than 75% of the Target Shares on a fully diluted basis.
(g) The Company shall, and shall cause its Affiliates US Holdco #1, US Holdco #2 and Bidco to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 provisions of the City Code, the Financial Services ▇▇▇ ▇▇▇▇ and the Companies Act and the rules all other applicable statutes, laws and regulations thereunder relevant in the context of the Offer.
(h) The Company shall cause Bidco to give notice under Section 429 of the Companies Act to relevant Target shareholders promptly upon becoming entitled to do so under the Companies Act.
(i) The Company shall ensure that on the Initial Funding Date the Administrative Agent is provided with copies of such constitutional documents of the Target and other applicable Law each Target Subsidiary as it deems to be material.
(j) The Company will (and will cause Bidco to) consult with the Administrative Agent with respect to any condition which is attached to:
(i) any indication by the Office of Fair Trading that it is not the intention of the Secretary of State for Trade and Industry to refer the proposed acquisition of Target by Bidco to the Monopolies and Mergers Commission; or
(ii) the expiry, lapsing or termination of any appropriate waiting period (including any extension thereof) under the United States ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and the regulations thereunder; and will not in any event treat or deem the conditions to the Offer Documentsspecified in Sections 1(b) or (c) (as the case may be) of Appendix 1 to the Press Release as satisfied or waived if it would, when filed with in the SEC and reasonable opinion of the Administrative Agent, have a material adverse effect on the date first publishedbusiness, sent assets, financial conditions or given to the stockholders prospects of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer Bidco or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsTarget.
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)
The Offer. (a) Provided that nothing 2.1 The parties shall have occurred that would give rise to a right to terminate procure the Offer pursuant to any release and publication of the conditions set forth in Annex I, as promptly as practicable after Press Announcement by no later than 7.00 a.m. on the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in .
2.2 In accordance with the Timetable, Telecity agrees and undertakes to Interxion to commence, or cause the Telecity Offeror to commence, within the meaning of Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following , a public exchange offer to acquire all of the filing of issued and to be issued Interxion Shares. In such amendmentoffer, and (iv) make such other amendments as are necessary or appropriate to conform to each Interxion Share accepted by the requirements of this Agreement. The Offer Telecity Offeror shall be subject exchanged for the right to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a receive from Telecity 2.3386 Telecity Shares (such number of Telecity Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered per Interxion Share exchanged pursuant to the Offer and (y) being hereinafter referred to as the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(iRatio), 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon on the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant referred to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectivelysuch offer, as may be amended or extended from time to time as permitted by this Agreement, the Offer).
2.3 The letter of transmittal included in the Offer Documents shall provide that an Interxion Shareholder may elect to receive all or part of such shareholder’s consideration in the form of Telecity ADRs, subject to applicable Laws. There shall be no prohibitions, restrictions or conditions on the transfer of the ADRs and the ADRs shall not be required to bear any legends restricting such transfer.
2.4 In accordance with the Timetable, Telecity will prepare and file a registration statement on (a) Form F-4 with the SEC to register the Offer Securities to be issued pursuant to the Offer, and (b) Form F-6 registering the ADRs issuable upon deposit of the Telecity Shares registered on the Form F-4 (such Form F-4 and Form F-6, together with any amendments or amendments, supplements and exhibits thereto, the “Offer Documents”Registration Statements and each a Registration Statement).
2.5 The Registration Statement on Form F-4 will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act (the Preliminary Prospectus), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary Telecity Circular and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company Telecity Prospectus.
2.6 Interxion and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time Registration Statements before any such document is filed Telecity files them with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Merger Subsidiary Telecity shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested thereto by the Company Interxion and its counsel. Parent Each party will share promptly with the other and Merger Subsidiary shall provide their respective counsel all communications or filings with the Company SEC or its staff and will permit the other party and its counsel a reasonable opportunity to review any communications or filings from such party to the SEC or its staff, and shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the other party and its counsel.
2.7 Telecity shall use its reasonable endeavours to have the Registration Statements declared effective by the SEC as promptly as reasonably practicable after the filing thereof with the SEC and to keep the Registration Statements effective as long as is necessary for the Conditions to be satisfied and the transactions contemplated by this Agreement completed.
2.8 Subject to the terms and conditions of this Agreement, Telecity shall provide guaranteed delivery procedures for the tender of Interxion Shares in the Merger and Telecity agrees to cause the Merger Documents to be disseminated to holders of Interxion Shares, as and to the extent required by the Securities Act and the Exchange Act and all other applicable Law.
2.9 Interxion shall promptly furnish to Telecity in writing all information concerning Interxion or any written persons designated by Interxion to serve on the Telecity Board that may be required by applicable securities Laws or oral comments Parentreasonably requested by Telecity for inclusion in the Offer Documents. Telecity, Merger Subsidiary subject to receipt of any required information or consent, agrees to name the persons designated by Interxion to serve on the Telecity Board pursuant to Clause 8.3(b) in accordance with the requirements of the Registration Statement.
2.10 Following the time that the Registration Statement on Form F-4 is declared effective, Telecity shall file the final prospectus included therein under Rule 424(b) of the Securities Act. Telecity shall, subject to the terms and conditions of this Agreement, (a) ensure that the Registration Statements, Preliminary Prospectus and the final prospectus referred to above comply in all material respects as to form with the applicable requirements of the Securities Act, the Exchange Act and all other applicable Laws, (b) promptly cause the Registration Statements, the Preliminary Prospectus and the final prospectus referred to above to be disseminated to Interxion Shareholders and others entitled to receive the same as an Offer Document to the extent required by applicable Laws, and (c) promptly advise Interxion of the time when the Registration Statements have become effective, of the issuance of any stop order with respect to the Registration Statements or the suspension of any qualification of the ADRs.
2.11 Interxion and its counsel shall be given an opportunity to the extent reasonably practicable to review and comment on the Telecity Circular and the Telecity Prospectus before Telecity files them with the FCA, and Telecity shall give due consideration to the reasonable additions, deletions or changes suggested thereto by Interxion and its counsel. Each party will share promptly with the other and their respective Affiliates counsel all official filings and communications with the FCA or its employees and will permit the other party and its counsel a reasonable opportunity to review any such filings or communications from such party to the FCA or its employees, and shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the other party and its counsel.
2.12 In accordance with the Timetable, Telecity shall use its reasonable endeavours to cause (a) the Telecity Circular and the Telecity Prospectus to be approved by the FCA as promptly as reasonably practicable; and (b) the FCA to provide to any other relevant competent authorities as may be required a certificate of approval and other documentation required under the EU Prospectus Directive (Directive 2003/71/EC) and/or any other applicable Law for the Telecity Prospectus to be “passported” into any other relevant member state of the EU to the extent so required. Telecity shall cause the Telecity Prospectus to comply in all material respects with applicable Law and the rules and regulations applicable thereto, including the Prospectus Rules and the Listing Rules.
2.13 In accordance with the Timetable, Telecity shall issue the Telecity Circular (together with the relevant forms of proxy) to Telecity Shareholders and others entitled to receive from the same and publish and file the Telecity Prospectus and the Telecity Circular, in each case in accordance with applicable Laws.
2.14 In accordance with the Timetable, Telecity shall file, or shall cause to be filed in accordance with Rule 14d-3 under the Exchange Act, the Schedule TO with the SEC and cause the Offer Documents to be disseminated to Interxion Shareholders and others entitled to receive the same to the extent required by applicable Laws. The Schedule TO shall contain, or incorporate by reference, the Preliminary Prospectus, the offer to purchase and forms of the related letter of transmittal, a form of summary advertisement and all other ancillary documents with respect to the Offer (collectively, together with all amendments, supplements and exhibits thereto, the Offer Documents).
2.15 In accordance with the Timetable, on the date the Offer Documents promptlyare filed with the SEC (or as soon as practicable thereafter), but Interxion shall file with the SEC and disseminate to Interxion Shareholders and others entitled to receive the same to the extent required by the Exchange Act, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any amendments and supplements thereto, the Schedule 14D-9) that shall reflect, subject to Clause 7.2, the Interxion Recommendation.
2.16 Interxion shall ensure that the Schedule 14D-9 complies in all material respects as to form with the requirements of the Exchange Act, the applicable rules and regulations of the New York Stock Exchange and all other applicable Laws.
2.17 Subject to Clause 7.2, Interxion shall also include in the Schedule 14D-9, and represents that it has obtained all necessary consents of its financial adviser to permit Interxion to include in the Schedule 14D-9, in its entirety, the fairness opinion delivered by its financial adviser, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether such item is applicable). Interxion hereby consents to the inclusion in the Offer Documents of a description of the Interxion Recommendation.
2.18 To the extent requested by Telecity, Interxion shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the holders of Interxion Shares together with the Offer Documents disseminated to the holders of Interxion Shares.
2.19 In accordance with the Timetable, Telecity will prepare and submit (a) to the FCA an application for admission of the Telecity Shares to be issued in the Offer (including those underlying the ADRs to be issued in the Offer) to the premium listing segment of the Official List; and (b) to the LSE an application for such shares to be admitted to the LSE’s main market for listed securities and will use its reasonable endeavours to cause such shares to be so admitted at or prior to the Offer Closing.
2.20 In accordance with the Timetable, Telecity will prepare and submit to a National Securities Exchange an application covering the ADRs to be issued in the Offer and will use its reasonable endeavours to cause the ADRs to be approved for listing (subject to notice of issuance) for trading on such National Securities Exchange at or prior to the Offer Closing. Except for procedures of the applicable clearing and settlement system and other customary limitations applicable to American depositary programs for a public listed company incorporated in England and Wales whose shares are admitted to the premium listing segment of the Official List and to trading on the LSE’s main market for listed securities which will be disclosed in (or incorporated by reference into) the Registration Statements, the ADRs will have the same rights and privileges as the Telecity Shares, and will entitle the holder thereof to receive (upon deposit of ADRs with the depositary for cancellation, and payment of any applicable fees, charges and taxes) the corresponding number of Telecity Shares.
2.21 Telecity shall not, except with the prior written consent of Interxion or as otherwise provided under the terms of this Agreement:
(a) reduce the number of Interxion Shares subject to the Offer;
(b) reduce the Merger Ratio;
(c) change the form of consideration payable in the Offer (except if Telecity is exercising its rights under Clause 13.2 to match or exceed an Interxion Superior Proposal) or modify the right to elect to receive Telecity Shares or ADRs;
(d) amend or waive the percentage in the Minimum Tender Condition to an amount below 80 per cent.;
(e) amend or waive the Conditions set out in Schedule 5 (except to the extent that Conditions may be waived by Telecity solely as set out in Schedule 5);
(f) add to or amend any of the other Conditions and requirements to the Offer, in a manner that is materially adverse to a holder of Interxion Shares; or
(g) except as expressly provided in Clause 3, terminate, extend or otherwise amend or modify the Expiration Time.
2.22 Subject to the satisfaction or waiver (to the extent permitted) of the Conditions, Telecity shall consummate, or shall cause the Telecity Offeror to consummate, the Offer in accordance with its terms and applicable Laws and accept all Interxion Shares validly tendered and not withdrawn pursuant to the Offer in compliance with Rule 14d-10 and Rule 14e-1(c) under the Exchange Act.
2.23 Interxion agrees that no event later than twenty-four hours, Interxion Shares held by Interxion or any of its subsidiaries or subsidiary undertakings will be tendered pursuant to the Offer or sold or otherwise disposed of or in any way encumbered after the receipt date hereof, and that no Interxion Shares will be purchased by Interxion or any of such commentsits subsidiaries or subsidiary undertakings, andprovided that, subject to the provisions hereofother terms of this Agreement, promptly respond Interxion is permitted to enter into transactions with respect to Interxion Shares in connection with the fulfilment of Interxion’s obligation under any of the Interxion Share Plans undertaken in accordance with Clause 9.
2.24 No fractional Offer Securities will be issued in the Offer to any Interxion Shareholder, no dividends or other distributions with respect to Telecity Shares 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 shareholder of Telecity. Notwithstanding any other provision of this Agreement, each Interxion Shareholder who would otherwise have been entitled to receive a fraction of an Offer Security (after aggregating all fractional ADRs and all fractional Telecity Shares issuable to such commentsInterxion Shareholder in the Offer) shall receive from the Exchange Agent, in lieu thereof, cash (without interest) in a US dollar amount representing such Interxion Shareholder’s proportionate interest in the net proceeds from the sale by the Exchange Agent on behalf of all such Interxion Shareholders of the aggregate number of Telecity Shares which would otherwise be issued or, in the case of ADRs, the number of Telecity Shares underlying the equivalent number of ADRs which would otherwise be issued; provided, however, that in no event will the cash paid under this Clause 2.24 exceed 1 per cent. of the total value of the Offer Securities issued to Interxion Shareholders pursuant to the Offer.
2.25 Telecity and Interxion shall enter into an exchange agency agreement with the Exchange Agent (the Exchange Agency Agreement), which agreement shall set forth the duties, responsibilities and obligations of the Exchange Agent consistent with the terms of this Agreement. Subject to the satisfaction or waiver (to the extent permitted) of the Conditions, by no later than the Offer Closing Date Telecity shall allot and issue to each holder of Interxion Shares who has surrendered Interxion Shares (or, in the case of any Interxion Shareholder who has elected to receive all or part of such shareholder’s consideration in ADRs, to the depositary of the ADRs) the number of Telecity Shares to be allotted and issued to such person or the depositary pursuant to Clause 2.2 and shall subsequently allot and issue to each holder of Interxion Shares (or, in the case of any Interxion Shareholder who has elected to receive all or part of such shareholder’s consideration in ADRs, to the depositary of the ADRs) in any Subsequent Offering Period who has surrendered Interxion Shares the number of Telecity Shares to be allotted and issued to such person pursuant to Clause 2.2. The Offer Securities will be issued fully paid and free from all liens, charges, equitable interests, encumbrances, rights of pre-emption and other third party rights of any nature whatsoever and together with all rights attaching to them and shall bear no restrictive or transfer legends. The Offer Securities will rank equally in all respects with the existing Telecity Shares, including the right to receive all dividends and other distributions declared, made or paid by Telecity by reference to a record date falling on or after the issuance thereof.
2.26 Telecity shall be entitled to deduct and withhold from the consideration otherwise payable in respect of Interxion Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under any applicable Law relating to tax. To the extent that amounts are so withheld by Telecity, such withheld amounts shall be treated for all purposes of this Agreement and the Offer as having been paid to the Interxion Shareholder in respect of which such deduction and withholding was made by Telecity.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and no event shall have occurred that would give rise or circumstance shall exist which constitutes a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex IA hereto, Subsidiary shall commence the Offer as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days the fifth business day following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements terms of this Agreement. The obligation of Subsidiary to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition that there a number of Shares representing not less than 75% of the Company's outstanding voting power (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) shall be have been validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “"Minimum Condition”) "), and the obligation of Subsidiary to commence the Offer and accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the other conditions set forth in Annex I A hereto. It is agreed that the Minimum Condition and the other conditions set forth in Annex A hereto are for the sole benefit of Subsidiary and may be asserted by Subsidiary regardless of the circumstances giving rise to any such condition. Subsidiary expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition, to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED that Subsidiary may only waive the Minimum Condition as long as Subsidiary purchases at least a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) and that, unless previously approved by the Company in writing, no other conditionschange may be made that decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares that Subsidiary offers to purchase in the Offer below a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel), imposes conditions to the Offer in addition to those set forth in Annex A hereto or otherwise amends the terms of the Offer in any way that would be materially adverse to holders of Shares. Subject to the next sentence, Subsidiary covenants and agrees that, subject to the terms and conditions of this Agreement, including including, without limitation, the prior satisfaction or waiver conditions of the conditions Offer set forth in Annex I (the “Offer Conditions”)A hereto, promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to shall accept for payment and pay for Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has have been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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 as soon as it is permitted to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01do so under applicable law. Notwithstanding the foregoing, Subsidiary (xi) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) may extend the Offer if at the scheduled or extended expiration date to purchase Shares in excess of the Shares required to satisfy the Minimum Condition up to the tenth business day following the date on which all conditions to the Offer shall first have been satisfied or waived, provided that, by virtue of making any such extension, Subsidiary shall be deemed to waive and thereafter shall not be entitled to assert any of the conditions to the consummation of the Offer shall not be satisfied or waivedcontained in subsections (b), from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Datec), (d) or waived; and (ye) Merger Subsidiary to Annex A hereto, (ii) shall extend the Offer for any period required by any rule, regulation, interpretation or position at least until 11:59 p.m. New York City time on the sixth business day following the delivery to Parent of the U.S. Securities a Notice of Superior Proposal (as defined in Section 6.8) and Exchange Commission (the “SEC”iii) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond at least until 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, period set forth in paragraph (d) or (e) of Annex A if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) notice of breach has been delivered in accordance with Rule 14d-11 of therewith. The Per Share Amount payable in the 1934 Act. Subject Offer shall be paid net to the foregoingseller in cash, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly .
(b) As soon as practicable after on the expiration date of commencement of the Offer, all Shares Parent and Subsidiary shall file (1i) validly tendered with the Securities and not withdrawn pursuant Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer and (2ii) validly tendered with the appropriate Canadian authorities any required filings with respect to the Offer, which in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement case of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, both (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) will contain the offer to purchase, form of the extent required related letter of transmittal and related documents published or filed by applicable U.S. federal securities lawsParent or Subsidiary (together with any supplements or amendments thereto, cause the "Offer Documents to be disseminated to holders of SharesDocuments"). Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company each 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 any such information shall have become false or misleading in any material respect. Merger respect and Parent and Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts each further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected appropriate Canadian authorities and to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to their filing with the SEC after and the date hereof appropriate Canadian authorities and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 be provided with any written or oral comments Parent, Merger Subsidiary or and their respective Affiliates or counsel may receive from the SEC or the appropriate Canadian authorities with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves On the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and 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. 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 Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file or cause to be filed with the SEC an amendment a combined Schedule 13E-3 and Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, the “Schedule TO”) and related Offer to Purchase, which shall include a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement and other ancillary Offer documents and instruments pursuant to which the terms and conditions set forth in this Agreement Offer will be made (collectively, together with and including any supplements or amendments or supplements thereto, the “Offer Documents”), ) and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to the holders of SharesShares as and to the extent required by applicable Law. The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable securities Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of all material disclosure relating to (i) the company financial advisor A▇▇▇▇ & Company LLC (including the amount of fees and other consideration that A▇▇▇▇ & Company LLC will receive upon consummation of or as a result of the Offer and the Merger, and the conditions therefor), (ii) the financial advisor N▇▇▇▇▇▇ & Company (including the amount of fees and other consideration that N▇▇▇▇▇▇ & Company shall receive in connection with the opinion referred to in Section 4.20), (iii) the opinions of each of A▇▇▇▇ & Company LLC and N▇▇▇▇▇▇ & Company referred to in Section 4.20 and (iv) the information that formed the basis for rendering each of such opinions, subject to the approval of the form of such disclosure by A▇▇▇▇ & Company LLC and N▇▇▇▇▇▇ & Company, respectively, such approval not to be unreasonably withheld or delayed. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). 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 or 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 applicable Law. Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case case, as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, 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 provide the Company and its counsel with (i) any written comments or other communications, and shall inform them of any oral comments or other communications, that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such commentsthose comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given).
(c) paragraph shall not be deemed to impair, and, subject limit or otherwise restrict in any manner the right of Parent or Merger Sub to the provisions hereof, promptly respond terminate this Agreement pursuant to such commentsArticle VIII.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex Ithis Agreement, as promptly as practicable practicable, and in any event no more than seven Business Days, after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it Merger Subsidiary to, commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Subsidiary to, and of Parent to cause Merger Subsidiary to, accept for payment and pay forfor any Shares tendered shall be subject only to the satisfaction of the conditions set forth in Annex A and to the terms and conditions of this Agreement; provided that Parent and Merger Subsidiary may waive any of the conditions to the Offer (other than the Minimum Condition, as promptly as practicable after which may not be waived without the expiration prior written consent of the Company) and may make changes in the terms and conditions of the Offer except that, without the prior written consent of the Company, no change may be made to the form of consideration to be paid, no decrease in the Offer Price or the number of Shares sought in the Offer may be made, no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and neither Parent nor Merger Subsidiary may extend the Offer, except in accordance with Section 2.01(c).
(b) On the date of commencement of the Offer, all Shares (1) validly tendered Parent and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO (as amended and supplemented from time to time, the "Schedule TO"), which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 provisions of applicable federal securities Laws, and shall contain the offer to purchase relating to the Offer and forms of the related letter of transmittal and other appropriate documents (which documents, as amended or supplemented from time to time, are referred to herein collectively as the "Offer Documents"). The Parent and the Merger Subsidiary further agree to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities Laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder and any other applicable Law Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company's stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents, when filed Documents prior to their filing with the SEC SEC. Parent and on the date first published, sent or given Merger Subsidiary agree to the stockholders of provide the Company, shall not contain and to consult with the Company and its counsel regarding, any untrue statement of a material fact comments that may be received from the SEC or omit to state any material fact required to be stated therein its staff (whether written or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation oral) with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)promptly after receipt thereof and any responses thereto. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. , and Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case case, as and to the extent required by applicable U.S. federal securities laws. Law.
(c) The Company and its counsel initial scheduled expiration date of the Offer shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC 20 Business Days after the date hereof and (B) on any correspondence with of its commencement. Notwithstanding the SEC (including comment response letters) concerning the Offer or the Offer Documentsforegoing, 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 have the right to extend the Offer (i) from time to time if, at any scheduled or extended expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or waived; provided that if any of the conditions to the Offer are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A hereto is not satisfied or waived as a result of the occurrence of any of the events described in subparagraph (b) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the written request of the Company if such conditions or condition could reasonably be expected to be satisfied on or before July 31, 2004, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable Law, (iii) on one or more occasions (all such occasions aggregating not more than 20 Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, represents more than 50% but less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent's decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (c) and (e) (excluding any wilful or intentional breach of any material obligation of the Company) on Annex A and of its counsel with right to terminate the Agreement under Sections 8.01(b), (d) (unless there has been a wilful or intentional breach of any written material obligation by the Company), (i) or oral comments Parent(j), (iv) on up to two occasions (for a period not to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or any extended expiration date of the Offer, and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate (collectively, the "Subsequent Period") pursuant to Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer Documents promptly, but in no event later than twenty-four hours, as soon as possible after the receipt of such comments, and, subject expiration thereof; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the provisions hereofOffer.
(e) The Offer Price may be increased by the Parent without the consent of the Company, promptly respond to such commentsin which case the Offer shall be extended, without the consent of the Company, as required by applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Wiser Oil Co)
The Offer. (a) Provided that nothing 12.1 Immediately after Closing, the Buyer shall have occurred that would give rise make the Offer. Having made the Offer, the Buyer undertakes to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date comply with its obligations arising under or by virtue of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated as set out in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer Letter and will procure that if any Option is exercised prior to the expiration date of its exercise period, then the relevant Optionholder will be issued with B Shares so as to enable that Optionholder to benefit from the Offer before the Offer closes.
12.2 The Sellers hereby irrevocably and unconditionally undertake (and by separate undertaking ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ are also to irrevocably undertake) to the Buyer
(a) to accept or procure the acceptance of the Offer (once made) not later than close of business on the date of this agreement and not withdrawn, a number to complete or procure the completion and delivery to the Buyer of Shares that, together with the Shares then owned by Parent stock forms of transfer and its Affiliates, represents a majority share certificate(s) and/or other document(s) of the total number title or evidence of Shares outstanding on authority in respect thereof or a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and form of indemnity to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver directors of the conditions set forth Company in Annex I (the “Offer Conditions”)respect of any lost certificates, promptly after the later in each case in respect of (x) the earliest date as their beneficial holdings of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.B Shares; and
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and exercise their respective options to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of subscribe for B Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that the Buyer so requires) to accept the transfer from EBT of B Shares in satisfaction of those B Shares to which the Sellers are respectively entitled following exercise of their respective Options;
(c) to accept the Offer in relation to such information shall have become false B Shares as are referred to in Clause 12.2(b);
(d) except pursuant to the Offer, not to sell, transfer, charge, encumber, grant any options over or misleading in otherwise dispose of, or permit the sale, transfer, charging, encumbering, granting of any material respect. Merger Subsidiary shalloption over or other disposal of, all or any of their respective holdings of B Shares or of any interest therein;
(e) to do all such acts and shall cause its Affiliates things, including signing any documents, that the Buyer may reasonably require to enable the Offer to be made.
12.3 The Sellers hereby irrevocably and by way of security for their obligations hereunder appoint, severally, the Buyer as “Offeror” under the Offer and any director of the Offeror as their attorney to execute and deliver the form of acceptance and to sign, execute and deliver all other documents and do all such other acts and things as may be necessary for, or incidental to, use their acceptance of the Offer in respect of the B Shares and/or the performance of their obligations under this undertaking on their behalf in the event of their failure to comply with any provision of this undertaking within the specific period and they irrevocably undertake to ratify such act if called upon to do so.
12.4 The above undertaking will be binding on the successors in title to substantially the whole of the undertaking of any Seller.
12.5 The Buyer and the Sellers each recognise and acknowledge that if they should fail to comply with their respective reasonable best efforts to cause obligations and undertakings hereunder, damages may not be an adequate remedy and that an order for specific performance or other equitable remedy may be the Schedule TO as so corrected to be filed with the SEC and the only adequate remedy for such breach.
12.6 The Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to issue of the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsLetter.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex IThe Offer, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may will be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions summarised below and in Appendix I to this announcement, and to the further terms which will be set out in full in the Offer Document and the accompanying Acceptance Form(s), will be made on the following basis: for each Sema Share 560 ▇▇▇▇▇ in cash for each Sema ADS (each ADS represents 1,120 ▇▇▇▇▇ in cash 2 Sema Shares) The Offer will extend, subject to the terms and conditions to be set out in the Offer Document and Acceptance Form(s), to all Sema Shares unconditionally allotted or issued on the date on which the Offer is made and any further Sema Shares unconditionally allotted or issued while the Offer remains open for acceptance (or such earlier date as Schlumberger Investments may, subject to the Code, decide). In conjunction with the offer being made to Sema Shareholders an offer is being made to holders of Sema ADSs to tender the Sema Shares underlying such ADSs into the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all . The Sema Shares (1) validly tendered and not withdrawn will be acquired by Schlumberger Investments pursuant to the Offer fully paid and free from all liens, charges, equitable interests, encumbrances and other third party rights and interests of any nature whatsoever and together with all rights now or hereafter attaching thereto, including the right to receive and retain all dividends and other distributions (2if any) validly tendered in the Subsequent Offering Period (the date on which declared, made or paid hereafter. If sufficient acceptances are received and/or sufficient Sema Shares are first accepted otherwise acquired, Schlumberger Investments intends to apply the provisions of Sections 428 to 430F (inclusive) of the Act to acquire compulsorily any outstanding Sema Shares to which the Offer relates. When the Offer becomes or is declared unconditional in all respects, Schlumberger Investments intends to procure the making of an application by Sema for payment, the “Acceptance Date”).
(c) As promptly as practicable removal of Sema Shares from the Official List and for the cancellation of trading in Sema Shares on the London Stock Exchange's market for listed securities. It is anticipated that cancellation of listing and trading will take effect no earlier than 20 business days after the date hereof, but Offer becomes or is declared unconditional in no event later than three Business Days following the public announcement all respects. Schlumberger Investments would also intend to apply for de-listing of the execution Sema Securities from the Nasdaq National Market and from Euronext Paris. Such de-listings and cancellation would significantly reduce the liquidity and marketability of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment any Sema Securities not assented to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsOffer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not --------- have been terminated in accordance with Section 8.1 and no event shall have occurred that would give rise or circumstance shall exist which constitutes a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex IA hereto, Subsidiary shall commence the Offer as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days the fifth business day following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements terms of this Agreement. The obligation of Subsidiary to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition that there a number of Shares representing not less than 75% of the Company's outstanding voting power (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) shall be have been validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “"Minimum Condition”) "), and the obligation of Subsidiary to commence the Offer and accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the other conditions set forth in Annex I A hereto. It is agreed that the Minimum Condition and the other conditions set forth in Annex A hereto are for the sole benefit of Subsidiary and may be asserted by Subsidiary regardless of the circumstances giving rise to any such condition. Subsidiary expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition, to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; provided that --------- Subsidiary may only waive the Minimum Condition as long as Subsidiary purchases at least a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) and that, unless previously approved by the Company in writing, no other conditionschange may be made that decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares that Subsidiary offers to purchase in the Offerbelow a majority of the Shares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel), imposes conditions to the Offer in addition to those set forth in Annex A hereto or otherwise amends the terms of the Offer in any way that would be materially adverse to holders of Shares. Subject to the next sentence, Subsidiary covenants and agrees that, subject to the terms and conditions of this Agreement, including including, without limitation, the prior satisfaction or waiver conditions of the conditions Offer set forth in Annex I (the “Offer Conditions”)A hereto, promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to shall accept for payment and pay for Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has have been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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 as soon as it is permitted to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01do so under applicable law. Notwithstanding the foregoing, Subsidiary (xi) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) may extend the Offer if at the scheduled or extended expiration date to purchase Shares in excess of the Shares required to satisfy the Minimum Condition up to the tenth business day following the date on which all conditions to the Offer shall first have been satisfied or waived, provided that, by virtue of making any such extension, Subsidiary shall be deemed to waive and thereafter shall not be entitled to assert any of the conditions to the consummation of the Offer shall not be satisfied or waivedcontained in subsections (b), from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Datec), (d) or waived; and (ye) Merger Subsidiary to Annex A hereto, (ii) shall extend the Offer for any period required by any rule, regulation, interpretation or position at least until 11:59 p.m. New York City time on the sixth business day following the delivery to Parent of the U.S. Securities a Notice of Superior Proposal (as defined in Section 6.8) and Exchange Commission (the “SEC”iii) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond at least until 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, period set forth in paragraph (d) or (e) of Annex A if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) notice of breach has been delivered in accordance with Rule 14d-11 of therewith. The Per Share Amount payable in the 1934 Act. Subject Offer shall be paid net to the foregoingseller in cash, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly .
(b) As soon as practicable after on the expiration date of commencement of the Offer, all Shares Parent and Subsidiary shall file (1i) validly tendered with the Securities and not withdrawn pursuant Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer and (2ii) validly tendered with the appropriate Canadian authorities any required filings with respect to the Offer, which in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement case of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, both (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) will contain the offer to purchase, form of the extent required related letter of transmittal and related documents published or filed by applicable U.S. federal securities lawsParent or Subsidiary (together with any supplements or amendments thereto, cause the "Offer Documents to be disseminated to holders of SharesDocuments"). Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company each 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 any such information shall have become false or misleading in any material respect. Merger respect and Parent and Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts each further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected appropriate Canadian authorities and to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to their filing with the SEC after and the date hereof appropriate Canadian authorities and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 be provided with any written or oral comments Parent, Merger Subsidiary or and their respective Affiliates or counsel may receive from the SEC or the appropriate Canadian authorities with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
Sources: Acquisition Agreement (International Murex Technologies Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise been terminated in accordance with Section 9.1 and the Company is prepared in accordance with Section 2.2(a) to a right file with the SEC, and to terminate disseminate to the Offer pursuant to any of Stockholders, the conditions set forth in Annex ISchedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable after the date hereof, (but in no event later than three 10 Business Days following Days) after the public announcement of the execution of this Agreementdate hereof, Merger Subsidiary Sub shall, and Parent shall amend cause Merger Sub to, commence (within the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act), the Offer.
(b) following the filing The obligations of such amendmentMerger Sub to, and (iv) make such other amendments as are necessary or appropriate of Parent to conform cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock pursuant to the requirements of this Agreement. The Offer shall be are subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver (as provided in Section 2.1(c) below) of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept for payment and pay for, as promptly as practicable after the expiration for all shares of the Offer, all Shares (1) Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the “Tendered Shares”) as promptly as practicable on or after the Expiration Date. The 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 and time at which Shares are first accepted for payment, the Offer Closing occurs is referred to in this Agreement as the “Acceptance Date”)Time.” Parent shall provide, or cause to be provided, to Merger Sub on a timely basis funds necessary to purchase and pay for any and all shares of Company Common Stock that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and this Agreement. In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company, payment may be made to a Person other than the Person in whose name the shares so tendered are registered if the Person tendering such shares shall pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of such shares or establish to the satisfaction of Parent that such Tax has been paid or is not applicable. Parent and Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective controlled Affiliates shall, tender any shares of Company Common Stock held by them into the Offer.
(c) As promptly Parent and Merger Sub expressly reserve the right to waive any of the Offer Conditions, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided that, unless otherwise previously approved by the Company in writing, Parent and Merger Sub shall not: (i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the maximum number of shares of Company Common Stock subject to or sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions, (iv) waive, modify or amend the Minimum Condition or the Antitrust and Judgment/Illegality Conditions (other than the condition in sub-clause (c)(ii)(1) of Annex I which may be waived by Parent and Merger Sub in their sole discretion), (v) amend any other term of the Offer in a manner that is materially adverse to the Stockholders, (vi) extend or otherwise change the Expiration Date except as practicable after required or permitted by Section 2.1(e) or (vii) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be terminated prior to the Expiration Date, unless this Agreement is validly terminated in accordance with Section 9.1.
(d) On the date hereof, but in no event later than three Business Days following the public announcement of the execution of this AgreementOffer is commenced, Merger Subsidiary Sub shall, and Parent shall cause its Affiliates Merger Sub to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which Tender Offer Statement shall include a revised an offer to purchase and form purchase, forms of the letter of transmittal reflecting transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), ) and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders the Stockholders to the extent required by applicable Law. The Company hereby consents to the inclusion of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they Recommendation in the Offer Documents. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and Exchange Act, the rules and regulations thereunder thereunder, and other requirements of applicable Law Law. The Company shall promptly furnish to Parent and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of Merger Sub all information concerning the Company, shall not contain any untrue statement of a material fact or omit to state any material fact the Company Subsidiaries and the Stockholders that may be 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 Parent and Merger subsidiary shall have no obligation with respect to any information set forth in the Offer Documents supplied or reasonably requested in connection with any action contemplated by this Section 2.1(d), including communication of the Company or its Representatives in writing)Offer to the record and beneficial Stockholders. Each of Parent, Merger Subsidiary and the Company parties agrees to 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 false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates toto correct any material omissions therefrom, use their respective reasonable best efforts and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe 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 (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselLaw. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with any written or oral comments that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the Stockholders, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents promptlyor response, but and Parent and Merger Sub shall give reasonable consideration to any comments provided by the Company. Parent and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(e) Unless extended or earlier terminated pursuant to and in no event accordance with the terms of this Agreement, the Offer shall remain open until one minute after 11:59 p.m., New York City time, on the 20th Business Day (for purposes of this Section 2.1(e), calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Agreement or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) if as of the then-effective Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub may, and Parent may cause Merger Sub to, in the Parent’s and Merger Sub’s sole discretion and without the consent of the Company, extend the Offer on one or more occasions in consecutive increments of not more than twenty-four hours, after 20 Business Days each (the receipt length of such commentsperiod to be determined by Parent and Merger Sub in their discretion), and, or for such longer period as the parties may agree in order to permit the satisfaction of such Offer Conditions (subject to the provisions hereofright of Parent or Merger Sub to waive any Offer Conditions, other than the Minimum Condition), (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for (x) the minimum period required by applicable Law, interpretation or position of the SEC or its staff or Nasdaq or its staff and (y) periods of not more than 10 Business Days per extension, until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act shall have expired or been terminated and (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, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of not more than 10 Business Days each; provided that Merger Sub shall not in any event be required to, and Parent shall not in any event be required to cause Merger Sub to, extend the Offer beyond the Outside Date; provided further that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Initial Expiration Date on more than three occasions, not to exceed an aggregate of 30 Business Days (provided that each such extension will be 10 Business Days unless the Company agrees otherwise), if, as of the applicable Expiration Date, all of the Offer Conditions are satisfied or have been waived, other than the Minimum Condition and conditions which by their nature are to be satisfied at the expiration of the Offer. In the event that this Agreement is validly terminated pursuant to Section 9.1, Merger Sub shall, and Parent shall cause Merger Sub to, promptly respond (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to such commentsthe Offer 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.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate The Merger Agreement provides for the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date making of the Offer as provided in this Offer to Purchase. The Company Board of Directors. The Merger Agreement provides that Parent shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate entitled to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, designate a number of Shares thatdirectors, together with rounded up to the Shares then owned by Parent and its Affiliatesnext whole number, represents a majority of the Company Board of Directors equal to the product of the total number of Shares outstanding directors on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable the Company Board of Directors (the “Minimum Condition”) and giving effect to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (xdirectors designated by Parent) the earliest date as multiplied by a fraction of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer numerator shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in which Parent and its subsidiaries (including Purchaser) beneficially own at that time, and the Offerdenominator shall be the total number of Shares then outstanding. The Directors so designated by Parent shall take office immediately after (i) the purchase of and payment for any Shares by Parent or any of its subsidiaries as a result of which Parent and its subsidiaries owns beneficially at least a majority of then outstanding Shares and (ii) compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, amends whichever shall occur later. In furtherance thereof, the Company shall, upon request of Parent, use its best efforts promptly either to increase the size of the Company Board of Directors or adds to secure the resignations of such number of its incumbent directors, or both, as is necessary to enable such designees of Parent to be so elected or appointed to the Offer Conditions or amends any other term Company Board of Directors, and the Offer in any manner adverse Company shall take all actions available to the stockholders Company to cause such designees of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on so elected or appointed. At such time, the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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 Company shall, if requested by Parent, also take all action necessary to cause persons designated by Parent to constitute the Company, or may, in its sole discretion, provide a subsequent offering period same percentage (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject rounded up to the foregoing, including next whole number) as is on the requirements Company Board of Rule 14d-11, and upon the terms and subject to the conditions Directors of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with each committee of the SEC an amendment to the Schedule TOCompany Board of Directors, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders each board of Shares. Each directors (or similar body) of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders each of the Company's subsidiaries and (iii) each committee (or similar body) of each such board. The Merger Agreement provides that the Company will promptly take, shall not contain any untrue statement at its expense, all actions required pursuant to Section 14(f) of a material fact or omit to state any material fact required to be stated therein or necessary the Exchange Act and Rule 14f-1 promulgated thereunder in order to make fulfill its obligations under the statements thereinprior paragraph, in light of including mailing to shareholders the circumstances under which they were made, not misleading (except that Parent information required by such Section 14(f) and Merger subsidiary shall have no obligation with respect Rule 14f-1 as is necessary to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of enable Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected 's designees to be filed with the SEC and the Offer Documents as so corrected elected or appointed to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.the
Appears in 1 contract
Sources: Offer to Purchase (Fedders Corp /De)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Article VIII and none of the conditions events set forth in Annex Iparagraph (g) of Exhibit A shall exist or have occurred and be continuing, as promptly as practicable reasonably practicable, and in any event no later than the later of the 10th calendar day after the date hereofhereof and November 5, but in no event later than three Business Days following 2015 Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the public announcement meaning of Rule 14d-2 under the execution Securities Exchange Act of this Agreement1934, Merger Subsidiary shall amend as amended (including the Offer to (i) increase the purchase price to $6.50 per Share (rules and regulations promulgated thereunder, the “Offer PriceExchange Act”)) the Offer.
(b) In the Offer, net each Share accepted by Merger Sub in accordance with the terms and subject to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight exchanged for the right to receive $1.00 in cash, without interest and subject to any withholding of Taxes required by applicable Law (New York City time) on the date such amount for each Share or such higher price per Share that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform may be paid pursuant to the requirements of this Agreement. The Offer shall be subject to Offer, the condition that there shall be validly tendered “Share Consideration”).
(c) In the Offer, each Public Warrant accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer prior shall be exchanged for the right to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basisreceive $0.02 in cash, without regard interest and subject to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions withholding of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under Taxes required by applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) such amount for each Share validly tendered and not properly withdrawn Public Warrant or such higher price per Public Warrant that may be paid pursuant to the Offer. , the “Public Warrant Consideration”).
(d) [Intentionally Omitted.]
(e) The obligation obligations of Merger Subsidiary (Sub, and of Parent to cause Merger Subsidiary) Sub, to accept for payment, payment and pay the Offer Price (without interest) for, each Share validly for any Shares or Public Warrants tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, satisfaction by the Company or waiver by Parent or Merger Subsidiary, of each Sub of the conditions set forth in Exhibit A hereto (the “Offer Conditions.
(b”) and the terms and conditions hereof. Merger Subsidiary Sub expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company right, in its sole discretion, to waive any Offer Condition or to modify the terms or conditions of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) (A) reduce the Minimum Condition may not be waivedShare Consideration, (Bii) no change may be made that changes the form of consideration payable in the Offer (other than by adding consideration pursuant to be paidSection 6.2(e)), decreases the price per Share or (iii) reduce the number of Shares sought in subject to the Offer, amends (iv) waive or adds change the Minimum Share Condition, (v) add to the Offer Conditions Conditions, (vi) extend the expiration of the Offer except as required or amends permitted by Section 1.1(f), or (vii) otherwise modify any other Offer Condition or any term of the Offer set forth in any this Agreement in a manner adverse to the stockholders holders of Shares.
(f) The Offer shall expire in accordance with its terms on the date that is 20 Business Days after the commencement of the Offer, except as may otherwise be required by applicable Law; provided, however, that Merger Sub may (but shall not be obligated to), without the consent of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer (i) if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer Conditions shall not be have been satisfied or waived, from time for one or more successive periods of up to time 20 Business Days per extension until the earlier to occur of (A) the date such conditions Offer Conditions are satisfied or waived or (other than conditions which by their nature are to be satisfied on B) January 31, 2016 (the Acceptance “Outside Date”) or waived; and (yii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market staff thereof or the rules of NASDAQ applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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”g) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the OfferOffer and this Agreement and the satisfaction or waiver by Merger Sub of all of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, Sub will accept for payment and pay for, for all Shares and Public Warrants validly tendered and not validly withdrawn pursuant to the Offer as promptly soon as practicable after the expiration of date thereof (as the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments same may be extended or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writingextended). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
Sources: Merger Agreement (Perseon Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with SECTION 11.01 and none of the events set forth in ANNEX I hereto shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iand be continuing, as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following business days, after the public announcement date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (the "FORM TO/A"), an amended Offer to Purchase (the "AMENDED OFFER TO PURCHASE") and, if necessary, the related letter of transmittal and any related summary advertisement (the execution of this AgreementForm TO/A, Merger Subsidiary shall amend the Amended Offer to Purchase and such other documents, together with all amendments and supplements thereto, the "OFFER DOCUMENTS") to reflect, among other things, an increase in the per share price to be paid in the Offer to (i) increase $30.00 and, if necessary, an extension of the purchase price currently scheduled expiration date to $6.50 per Share (allow the “Offer Price”), net to remain open for ten business days from the seller in cash, (ii) provide that date of such increase. The obligation of Merger Co. to consummate the conditions Offer and to accept for payment and to pay for shares of Company Common Stock tendered pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, subject only to (iiii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn, a number of Shares shares that, together with the Shares shares of Company Common Stock then owned by Parent and its Affiliatesand/or Merger Co., represents a majority 50.1% of the total number shares of Shares Company Common Stock outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”"MINIMUM CONDITION") and to (ii) the other conditions set forth in Annex ANNEX I and to no other conditionshereto. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Co. expressly reserves the right to waive any of such condition (other than the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that Minimum Condition, which shall not be waived without the prior written consent of the Company) or the condition relating to the expiration of the HSR Act and to increase the Per Share of Company (which consent may be granted or withheld by Common Stock Amount. Notwithstanding the Company in its sole discretion) (A) the Minimum Condition may not be waivedforegoing, (B) no change may be made that which (i) decreases the Per Share of Company Common Stock Amount, (ii) changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, amends (iii) increases the Maximum Amount or adds the Minimum Condition, (iv) reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (v) imposes conditions to the Offer Conditions in addition to those set forth in ANNEX I hereto, (vi) except as specifically provided for in this SECTION 2.01(a), extends the expiration date of the Offer or (vii) otherwise alters or amends any other term of the Offer in any manner adverse to the stockholders holders of shares of Company Common Stock; provided, however, that the Company, (C) the expiration date shall not Offer may be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period to the extent required by law or by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer; provided that in no event . Parent and Merger Co. shall Merger Subsidiary be required to extend comply with the Offer beyond obligations respecting prompt payment and announcement under the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)Exchange Act, in which case Merger Subsidiary shall be required to extend and, without limiting the Offer beyond the End Date. Following expiration generality 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon subject to the terms and subject conditions of this Agreement, including but not limited to the conditions of the Offer, Merger Subsidiary shall, Co. shall and Parent shall cause it Merger Co. to, accept for payment and pay for, for shares of Company Common Stock tendered pursuant to the Offer as promptly soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to SECTION 11.01 and subject to SECTION 2.01(d), Merger Co. shall extend the Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Offer have not been satisfied or waived as permitted pursuant to this Agreement, each such extension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in SECTION 2.01(d) or 2.01(f), Merger Co. shall not terminate the Offer without purchasing shares of Company Common Stock pursuant to the Offer. If at the expiration of the Offer, all Shares (1) Offer a number of shares of Company Common Stock has been validly tendered and not withdrawn that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., exceeds the Maximum Amount, the number of shares of Company Common Stock to be purchased by Merger Co. pursuant to the Offer shall be prorated in accordance with Rule 14d-8 promulgated under the Exchange Act, so that the number of shares of Company Common Stock purchased by Merger Co. pursuant to the Offer, together with the shares of Company Common Stock then owned by Parent and (2) validly tendered in Merger Co., will represent 50.1% of the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)shares of Company Common Stock outstanding.
(cb) As Provided that this Agreement shall not have been terminated in accordance with SECTION 11.01 and none of the events set forth in ANNEX II hereto shall have occurred and be continuing, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent shall cause Merger Subsidiary shallCo. to, and Merger Co. shall cause its Affiliates to(i) commence the Exchange Offer pursuant to which Merger Co. shall offer to issue a number of duly authorized, validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the Exchange Offer Ratio (as defined below) for each then issued and outstanding share of Company Common Stock (other than shares of Company Common Stock then owned by Parent or Merger Co.), (iii) file with the SEC, to the extent required by the Exchange Act, a Form TO (the "EXCHANGE FORM TO"), an Offer to Exchange (the "OFFER TO EXCHANGE") and the related letter of transmittal and any related summary advertisement (the Exchange Form TO, the Offer to Exchange and such other documents, together with all amendments and supplements thereto, the "EXCHANGE OFFER DOCUMENTS") and (iii) file with the SEC an amendment a Registration Statement on Form S-4 (the "EXCHANGE FORM S-4") to register under the Securities Act the securities to be issued in the Exchange Offer. The obligation of Merger Co. to consummate the Exchange Offer and to issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Schedule TO, which Exchange Offer shall include a revised offer be subject only to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement ANNEX II hereto. Merger Co. expressly reserves the right to waive any such condition (collectivelyother than the condition that at least five business days have elapsed since the acceptance for payment and payment for a number of shares of Company Common Stock pursuant to the Offer representing, together with any amendments shares of Company Common Stock previously owned by Parent, at least 50.1% of the issued and outstanding shares of Company Common Stock and the subsequent delivery of shares of Company Common Stock not purchased in the Offer to the Depositary under the Exchange Offer, which condition shall not be waived without the prior written consent of the Company) and to increase the Exchange Offer Ratio. Notwithstanding the foregoing, no change may be made which (i) decreases, or supplements theretowould have the effect of decreasing, the “Exchange Offer Documents”)Ratio, and (ii) changes the form of consideration to be paid in the Exchange Offer, (iii) reduces the number of shares of Company Common Stock sought to be purchased in the Exchange Offer, (iv) imposes conditions to the Exchange Offer in addition to those set forth in ANNEX II hereto, (v) extends the expiration date of the Exchange Offer or (vi) otherwise alters or amends any term of the Exchange Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that the Exchange Offer may be extended (x) for any period to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed law or by any rule, regulation, interpretation or position of them the SEC or the staff thereof applicable to the Exchange Offer or (y) if the number of shares of Company Common Stock validly tendered in accordance with the SEC to comply in all material respects Exchange Offer, together with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documentsshares of Company Common Stock owned by Parent as of such date, when filed with the SEC and on the date first published, sent or given to the stockholders is less than 90% of the Companyoutstanding 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 as of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company scheduled or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselextended expiration date. Parent and Merger Subsidiary Co. shall provide comply with the Company obligations respecting prompt delivery of shares of Parent Common Stock and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from announcement under the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such commentsExchange Act, and, without limiting the generality of the foregoing, subject to the provisions hereofterms and conditions of this Agreement, promptly respond including but not limited to the conditions of the Exchange Offer, Merger Co. shall and Parent shall cause Merger Co. to, accept for exchange and issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Exchange Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Exchange Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Exchange Offer have not been satisfied or waived as permitted pursuant to this Agreement, each such commentsextension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in Section 2.01(d) or 2.01(f), Merger Co. shall not terminate the Exchange Offer without accepting shares of Company Common Stock and issuing shares of Parent Common Stock pursuant to the Exchange Offer. Notwithstanding anything to the contrary set forth herein, no certificates representing fractional shares of Parent Common Stock shall be issued in connection with the Exchange Offer, and in lieu thereof each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock in the Exchange Offer will be paid an amount in cash equal to the product obtained by multiplying (A) the fractional share interest to which such holder would otherwise be entitled by (B) the Average Exchange Offer Price (as defined below).
(c) For purposes of this SECTION 2.01, "EXCHANGE OFFER RATIO" means the number of shares of Parent Common Stock determined as set forth below:
Appears in 1 contract
Sources: Merger Agreement (Ibp Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 10.1, as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following November 15, 2012 (or such other date as the public announcement of the execution of this AgreementParties may mutually agree to in writing), Merger Subsidiary Sub shall, and Parent shall amend cause Merger Sub to, commence (within the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following the filing Offer. The obligations of such amendmentMerger Sub to, and (iv) make such other amendments as are necessary or appropriate of Parent to conform cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the requirements of this Agreement. The Offer shall be are subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I A (the “Offer Conditions”), promptly after the later of (x) the earliest . The date as of on which Merger Subsidiary Sub commences the Offer is permitted under applicable Law referred to accept for payment Shares herein as the “Offer Commencement Date”. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries (other than any such shares held on behalf of third parties) will be tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of On the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the CompanyCommencement Date, Parent and Merger Sub shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment 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, which ”) that shall include a revised the summary term sheet required thereby and, as exhibits, the offer to purchase and purchase, form of letter of transmittal reflecting transmittal, form of notice of guaranteed delivery, summary advertisement and other ancillary documents pursuant to which the terms and conditions set forth in this Agreement Offer will be made (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ; and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of SharesShares as required by applicable Law. The Company shall promptly (and in no event later than three (3) Business Days following Merger Sub’s or Parent’s request) furnish to Parent and Merger Sub all information concerning the Company and its Subsidiaries or any of their respective Representatives that may be required by the Exchange Act and other applicable securities Laws or as reasonably requested by Parent or Merger Sub to be set forth in the Offer Documents. Subject to Section 8.6, the Company hereby consents to the inclusion of the Company Recommendation in the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). 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 respect. Parent and Merger Subsidiary shall, Sub shall take all steps reasonably necessary to amend or supplement the Schedule TO to correct such information and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC and the Offer Documents Documents, as so corrected corrected, to be disseminated to holders of 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 (A) on the Schedule TO and the Offer Documents each time (or any amendment or supplement thereto), including the proposed final version thereof, before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsdisseminated to holders of Shares, 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 provide the Company and its counsel with (i) any comments or other communications, whether written or oral comments oral, that Parent, Merger Subsidiary Sub or their respective Affiliates counsel or counsel other representatives may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptlypromptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments, and to provide comments on that response (to which Parent and Merger Sub shall give reasonable and good faith consideration), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(c) The Offer Conditions are for the sole benefit of Parent and Merger Sub and Parent and Merger Sub expressly reserve the right to waive, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, without the prior written consent of the Company, neither Parent nor Merger Sub shall:
(i) waive or change the Minimum Condition or the Termination Condition;
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Shares subject to the Offer;
(v) terminate, extend or otherwise change the expiration date of the Offer, except as otherwise provided in this Agreement;
(vi) provide any “subsequent offering period” with the meaning of Rule 14d-11 under the Exchange Act; or
(vii) impose additional conditions to the Offer or otherwise amend, modify or supplement any of the Offer Conditions or the other terms of the Offer in any manner adverse to the holders of the Shares.
(d) Unless extended as provided in this Agreement, the Offer shall expire at 11:59 p.m. New York time on the date that is twenty Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date (the “Initial Offer Expiration Date”). If as of 11:59 p.m. New York time on the Initial Offer Expiration Date or any subsequent date as of which the Offer is scheduled to expire, (i) any of the Offer Conditions shall not have been satisfied or waived by Merger Sub, then, unless Parent and the Company otherwise agree, and subject to the rights and remedies of the Parties under this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to), extend the Offer for one or more consecutive increments of not more than five Business Days each, the length of each such period to be determined by Parent in its sole discretion (or for such longer period as Parent and the Company may mutually agree) until such Offer Condition(s) are satisfied or waived, or (ii) the Offer is required to be extended by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required by such rule, regulation or interpretation or position; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to the immediately preceding clauses (i) or (ii) beyond the End Date unless Parent or Merger Sub is not then permitted to terminate this Agreement pursuant to Section 10.1(c), in which case Merger Sub shall be required to extend the Offer beyond the End Date. In addition, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer beyond any then scheduled Offer Expiration Date (i) for one or more consecutive increments designated by the Company in its sole discretion (which designation shall be made by the Company in writing to Parent not later than the date that is one Business Day prior to the then scheduled Offer Expiration Date); provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this clause (i) beyond 5 p.m. (New York City time) on December 12, 2012 and (ii) if the Company has delivered a notice pursuant to clause (w) of the last sentence of Section 8.6(d) prior to the then scheduled Offer Expiration Date, three Business Days after such notice; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this clause (ii) more than once (the date on which the Offer finally expires taking into account any extensions pursuant to and in accordance with this Section 2.1(d) is referred to herein as the “Offer Expiration Date”). In addition, Merger Sub shall have the right in its sole discretion to extend the Offer beyond any then-scheduled expiration of the Offer for one or more consecutive increments of up to five Business Days each, the length of each such period to be determined by Parent in its sole discretion (or such longer period as Parent and the Company may mutually agree) to the extent (x) Parent and Merger Sub shall have waived the Financing Proceeds Condition, (y) all of the Offer Conditions other than the Financing Proceeds Condition have been satisfied or waived and (z) the Debt Financing (or any alternative financing contemplated by Section 8.11 (such alternative financing, “Alternative Financing”)) has not actually been received by Merger Sub or Parent, and the lenders party to the Debt Financing Commitment (or to the commitments with respect to any Alternative Financing (such commitments, “Alternative Financing Commitments”)) have not definitively and irrevocably confirmed in writing to Parent and Merger Sub that the Debt Financing (or Alternative Financing) in an amount sufficient (together with the Equity Financing and cash available to the Company) to consummate the Offer and the Merger will be available at the Offer Closing on the terms set forth in the Debt Financing Commitment (or Alternative Financing Commitments) and subject only to the satisfaction of the Offer Conditions (and contribution by Parent or Merger Sub of the proceeds of the Equity Financing). If (x) the Financing Proceeds Condition has been satisfied less than five Business Days prior to the then-scheduled expiration of the Offer (including the then-scheduled expiration date of the Offer) and (y) all of the other Offer Conditions have been satisfied or waived at the then scheduled expiration of the Offer, then Merger Sub and Parent shall have a one-time right to extend the Offer pursuant to this sentence and such extension shall be for a period of up to five Business Days.
(e) Subject to the terms and conditions set forth in this Agreement and to the satisfaction, or waiver by Merger Sub, of the Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable (which shall, in any event, be no more than three Business Days) after the Offer Expiration Date, all Shares validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer (such acceptance, the “Offer Closing”, the time on which the Offer Closing occurs, the “Acceptance Time”, and the date on which the Offer Closing occurs, the “Offer Closing Date”). Parent shall provide, or cause to be provided, to Merger Sub on a timely basis the funds necessary to purchase all Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(f) The Offer may not be terminated prior to the Offer Expiration Date unless this Agreement is validly terminated in accordance with Section 10.1; provided, however, that if at any date on which the Offer is scheduled to expire, (i) the Marketing Period shall have ended and any Offer Condition (other than the Financing Proceeds Condition) shall not have been satisfied or waived and (ii) the Proxy Statement Clearance Date shall have occurred at least three Business Days prior to such scheduled expiration of the Offer, then (x) notwithstanding the provisions of subclause (i) of Section 2.1(d), Merger Sub may irrevocably and unconditionally terminate the Offer (provided that prior to so terminating the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, notify the Company in writing at least one Business Day in advance of such termination and the Company shall have a one-time right (exercisable in the Company’s sole discretion) to cause Merger Sub to extend, rather than terminate, the Offer for one consecutive increment of five Business Days, in which case Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for such period) and (y) if the Financing Outside Date has occurred, the Company shall have the right, exercisable by delivering written notice to Parent and Merger Sub, to cause Merger Sub to, and upon receipt of such written notice, Merger Sub shall, and Parent shall cause Merger Sub to, irrevocably and unconditionally terminate the Offer at the then-scheduled expiration date following the receipt of such notice sent by the Company. The termination of the Offer pursuant to the immediately preceding sentence is referred to in this Agreement as the “Offer Termination” and the date on which the Offer Termination occurs is referred to in this Agreement as the “Offer Termination Date”. If the Offer Termination occurs, Merger Sub shall promptly (but in no event later than twenty-four hours, three Business Days after the receipt Offer Termination Date) return, and shall cause any depository acting on behalf of such commentsMerger Sub to return, and, subject all tendered shares of Company Common Stock to the provisions hereofregistered holders thereof. The Parties hereto acknowledge and agree that the Offer Termination shall not give rise to a right of termination of this Agreement unless to the extent expressly provided for in Section 10.1 and that, promptly respond absent such any termination of this Agreement, the obligations of the Parties hereunder other than those related to such commentsthe Offer shall continue to remain in effect notwithstanding the Offer Termination, including those obligations with respect to the Merger. The Parties hereto also acknowledge and agree that the occurrence of the Offer Termination shall not limit or affect the right of the Company to terminate this Agreement pursuant to Section 10.1(h).
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex Ithis Agreement, as promptly as practicable practicable, and in any event no more than seven (7) Business Days, after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it Merger Subsidiary to, commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Subsidiary to, and of Parent to cause Merger Subsidiary to, accept for payment and pay forfor any Shares tendered shall be subject only to the satisfaction of the conditions set forth in Annex A and to the terms and conditions of this Agreement; provided that Parent and Merger Subsidiary may waive any of the conditions to the Offer (except for the Minimum Tender Condition which may not be waived without the prior written consent of the Company) and may make changes in the terms and conditions of the Offer except that, as promptly as practicable after without the expiration prior written consent of the Company, (i) no change may be made to the form of consideration to be paid, (ii) no decrease in the Offer Price or the number of Shares sought in the Offer may be made, (iii) no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and (iv) neither Parent nor Merger Subsidiary may extend the Offer, except in accordance with Section 2.1(c) or 2.1(e).
(b) On the date of commencement of the Offer, all Shares (1) validly tendered Parent and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO (as amended and supplemented from time to time, the “Schedule TO”), which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act provisions of applicable federal securities Laws, and shall contain the offer to purchase relating to the Offer and forms of the related letter of transmittal and other appropriate documents (which documents, as amended or supplemented from time to time, are referred to herein collectively as the “Offer Documents”). Parent and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given Merger Subsidiary further agree to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in disseminate the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case Shares as and to the extent required by applicable U.S. federal securities lawsLaws. In conducting the Offer, Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.1. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to their filing with the SEC after the date hereof SEC, and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 the Company and its counsel with (i) any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel that may receive be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptlypromptly after receipt thereof and prior to responding thereto and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to these comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), but including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent and Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each case, as and to the extent required by Law.
(c) The initial scheduled expiration date of the Offer shall be midnight, New York City time, on the twentieth Business Day after (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) the date of its commencement (such initial date, or if and only if the expiration time and date is extended as authorized in this Agreement, such date as so extended, the “Expiration Date”); provided, however, that Merger Subsidiary shall: (i) from time to time extend the Offer for one or more periods of up to 10 Business Days each, the length of each such period to be determined by Merger Subsidiary in its sole discretion, if at the scheduled Expiration Date any of the conditions of the Offer, including the Minimum Tender Condition and the conditions and requirements set forth on Annex A (other than conditions which by their nature are to be satisfied at the closing of the Offer), shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the Expiration Date.
(d) If fewer than 90% of the issued and outstanding Shares are accepted for payment pursuant to the Offer by the Expiration Date, then Merger Subsidiary may, and at the request of the Company, shall, and upon any such request of the Company, Parent shall cause Merger Subsidiary to, provide for one or more subsequent offering periods of up to an additional twenty (20) Business Days in the aggregate (collectively, the “Subsequent Period”) pursuant to Rule 14d-11 of the Exchange Act; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period.
(e) Notwithstanding the above, in no event later than twenty-four hoursshall Merger Subsidiary be required to, after or shall Parent be required to cause Merger Subsidiary to, extend the receipt Offer beyond the End Date (as defined in Section 8.1(b)(i)). In no event shall Merger Subsidiary extend the Offer beyond the End Date without the consent of such comments, and, subject the Company. The Offer may not be terminated prior to its scheduled Expiration Date (as it may be extended in accordance with this Agreement) unless this Agreement is terminated in accordance with Section 8.1.
(f) Parent shall provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the provisions hereof, promptly respond to such commentsOffer.
Appears in 1 contract
The Offer. (a) Not later than the first business day after the date of this Agreement, ACQUIROR, Acquisition Subsidiary and EKCO will make a public announcement of the Offer.
(b) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Section 7.1 and none of the conditions events set forth in Annex IA hereto shall have occurred or be existing, Acquisition Subsidiary shall commence, in accordance with the terms hereof, the Offer and ACQUIROR shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, as amended, including the rules and regulations promulgated thereunder (the "Exchange Act"), the Offer as promptly as reasonably practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to five (i5) increase the purchase price to $6.50 per Share business days (the “Offer Price”), net to the seller as such term is defined in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-1 under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later initial public announcement of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law Acquisition Subsidiary's intention to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to commence the Offer. The obligation of Merger Acquisition Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, payment and pay the Offer Price (without interest) for, each Share validly for EKCO Shares tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, satisfaction or waiver (other than a waiver of the Minimum Condition requirement) of the conditions set forth in Annex A hereto (unless the failure of any such condition was caused by Parent any material breach by ACQUIROR or Merger SubsidiaryAcquisition Subsidiary of this Agreement in which case Acquisition Subsidiary shall be obligated to accept for payment and pay for EKCO Shares tendered pursuant to the Offer provided that such failure has been waived by EKCO), including the condition that a number of EKCO Shares representing that number of EKCO Shares which would equal more than fifty percent (50%) of the voting power (determined on a fully-diluted basis), of each all the securities of EKCO entitled to voted generally in a merger shall have been validly tendered and not withdrawn prior to the expiration date of the Offer Conditions.
(b) Merger the "Minimum Condition"). Acquisition Subsidiary expressly reserves the right to waive any of such condition, to increase the Offer Conditions Per Share Amount and to make any other changes in the terms and conditions of or conditions to the Offer; provided that provided, however, that, without the prior written consent of EKCO, Acquisition Subsidiary will not (i) decrease the Company Per Share Amount below $7.00 (which consent may be granted or withheld by ii) reduce the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form minimum number of consideration EKCO Shares to be paid, decreases the price per Share or the number of Shares sought purchased in the Offer, amends (iii) change the form of the consideration payable in the Offer (other than by adding consideration), (iv) add to, modify or adds supplement the conditions to the Offer Conditions or amends any other term of the Offer set forth in any manner adverse to the stockholders of the CompanyAnnex A hereto, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary tov) extend the Offer if at the scheduled or extended expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein or (vi) make any other change in the terms or conditions of the conditions Offer which is materially adverse to the Offer shall not be satisfied holders of EKCO Shares, it being agreed that a waiver by Acquisition Subsidiary of any condition in whole or waived, in part (other than the Minimum Condition) at any time and from time to time until such conditions are satisfied (other than conditions which by their nature are in its discretion shall not be deemed to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for materially adverse to any period required by any rule, regulation, interpretation or position holder of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End DateEKCO Shares. Following expiration of the Offer, Merger Subsidiary The Per Share Amount shall, if requested by the Companysubject to any applicable withholding of taxes, or maybe net to each seller in cash, 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, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Merger Acquisition Subsidiary shall, and Parent ACQUIROR shall cause it Acquisition Subsidiary to, accept for payment and pay forpay, as promptly as practicable after the expiration of the Offer, for all EKCO Shares (1) validly tendered and not withdrawn withdrawn; provided, that Acquisition Subsidiary shall have the right, in its sole discretion, to extend the Offer from time to time for up to a maximum of 15 business days, notwithstanding the prior satisfaction of the conditions contained in Annex A if on such expiration date there shall not have been tendered that number of EKCO Shares which would equal more than 90% of the issued and outstanding EKCO Shares (the "15 Day Right") and provided further, that if Acquisition Subsidiary shall extend the Offer pursuant to the Offer 15 Day Right, Acquisition Subsidiary shall waive during such 15 business days all conditions set Agreement and Plan of Merger 2 Execution Copy 7 forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a), (b) and (2d) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).Annex A.
(c) As promptly as practicable after On the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger ACQUIROR and Acquisition Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO14D-1, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement including all exhibits thereto (collectively, together with any all amendments or and supplements thereto, the “"Schedule 14D-1"), with respect to the Offer. The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the forms of related Letters of Transmittal as well as all other information and exhibits required by law (the Schedule 14D-1, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents”"), and (ii) to the extent required by applicable U.S. federal securities laws, cause the . The Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act and provisions of applicable federal securities laws and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date filed with the SEC and on the date first published, sent or given to the stockholders of the CompanyEKCO'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 Parent no representation is made by ACQUIROR and Merger subsidiary shall have no obligation Acquisition Subsidiary with respect to information supplied by EKCO for inclusion in the Offer Documents. ACQUIROR, Acquisition Subsidiary and EKCO shall correct promptly any information provided by any of them for use in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respect. Merger Subsidiary shallmisleading, and ACQUIROR and Acquisition Subsidiary shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to cause the Schedule TO 14D-1, as so corrected corrected, to be filed with the SEC and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of EKCO Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company EKCO and its counsel shall be given a the reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC after the date hereof SEC. ACQUIROR and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Acquisition Subsidiary shall provide the Company EKCO and its counsel with a copy of any written comments or telephonic notification of any oral comments Parent, Merger ACQUIROR or Acquisition Subsidiary or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject thereof. In the event that ACQUIROR or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the provisions 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.
(i) Subject to the terms and conditions hereof, promptly respond the Offer shall initially remain open until midnight, New York City time, on the date that is twenty (20) business days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the "Initial Expiration Date").
(ii) If Acquisition Subsidiary does not consummate the Offer on the Initial Expiration Date due to the failure of one or more conditions in Annex A to be satisfied, Acquisition Subsidiary shall extend the Offer one or more times until the earlier of (x) 11:59 p.m. New York time on the 60th calendar day after the date of this Agreement or (y) two business days after such commentstime as such condition or conditions are satisfied or waived; provided that Acquisition Subsidiary shall not be obligated to extend the Offer pursuant to this sentence if the condition that has not been satisfied is not reasonably capable of being satisfied at or prior to the time referred to in clause (x) above; provided, further, that nothing herein shall prohibit Acquisition Subsidiary from exercising its 15 Day Right.
(iii) If Acquisition Subsidiary does not consummate the Offer on or prior to the 60th calendar day after the date of this Agreement due to the failure of one or more conditions in Annex A to be satisfied, and if such unsatisfied condition or conditions are reasonably capable of being satisfied, Acquisition Subsidiary shall, at the request of EKCO, extend the Offer one or more times until the earlier of (x) 11:59 p.m. New York time on the 120th calendar day after the date of this Agreement or (y) two Agreement and Plan of Merger 3 Execution Copy 8 business days after such time as such condition or conditions are satisfied or waived; provided, further, that nothing herein shall prohibit Acquisition Subsidiary from exercising its 15 Day Right.
(iv) If Acquisition Subsidiary does not consummate the Offer on or prior to the 60th calendar day after the date of this Agreement due to the failure of one or more conditions in Annex A to be satisfied, and if such unsatisfied condition or conditions are reasonably capable of being satisfied, Acquisition Subsidiary may extend the Offer one or more times until (a) the 120th calendar day after the date of this Agreement or (b) until the 180th calendar day after the date of this Agreement if the Offer shall not have been consummated solely due to the waiting period (or any extension thereof) or approvals under the HSR Act or any applicable foreign competition laws not having expired or been terminated or received.
(v) Acquisition Subsidiary may at any time transfer or assign to ACQUIROR or to one or more corporations, 80% or more of the outstanding capital stock of which is directly or indirectly owned by ACQUIROR, the right to purchase all of the EKCO Shares tendered pursuant to the Offer, but any such transfer or assignment shall not relieve ACQUIROR or Acquisition Subsidiary of its obligations hereunder or prejudice the rights of stockholders or holders of EKCO Options or EKCO Warrants to receive payment for EKCO Shares validly tendered and accepted for payment in the Offer or in the Merger or otherwise in accordance with the terms hereof. Any such assignee or transferee of Acquisition Subsidiary shall assume all of the obligations of Acquisition Subsidiary hereunder, and ACQUIROR and Acquisition Subsidiary shall amend this Agreement, at the request of EKCO, to substitute any such assignee or transferee for Acquisition Subsidiary in this Agreement.
(vi) Acquisition Subsidiary shall be obligated to consummate the Offer on the date (or no later than one business day after the date) that all of the conditions set forth in Annex A shall have been satisfied; provided, however, that nothing herein shall prohibit Acquisition Subsidiary from exercising its 15 Day Right.
Appears in 1 contract
The Offer. (a) Provided that nothing Merger Sub shall, and Parent shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Icause Merger Sub to, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on or before the date that is ten Business Days (for 10) business days after the date of the initial public announcement of this purpose calculated in accordance with Agreement, commence (within the meaning of Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following the filing of such amendment, and Offer to purchase for cash any (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of Minimum Condition) and all Shares at the Offer prior Price.
(b) The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any Shares pursuant to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject is subject only to the terms and conditions of this Agreement, including the prior satisfaction or waiver (as provided in Section 1.1(c) below) of the conditions set forth in Annex I (the “Offer Conditions”) (without limiting the right of Merger Sub to terminate, extend or modify the Offer in accordance with the terms of this Agreement). On the terms and subject to the conditions of the Offer and this Agreement, promptly Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) as soon as practicable after the later Expiration Date and in compliance with applicable Law. The acceptance for payment of (x) Shares pursuant to and subject to the earliest conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Closing occurs is referred to in this Agreement as the “Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub on the date of which the Offer Closing funds necessary to purchase and pay the Offer Price for any and all Shares that Merger Subsidiary is permitted under applicable Law Sub becomes obligated to accept for payment Shares tendered and purchase pursuant to the Offer and this Agreement.
(yc) the earliest date as of which each of the The Offer Conditions has been satisfiedare for the sole benefit of Parent and Merger Sub, and Parent and Merger Sub may waive, in whole or in part, any Offer Condition at any time and from time to time, in their sole and absolute discretion, other than the Minimum Condition, which may be waived by Parent or and Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate Sub only with 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each prior written consent of the Offer Conditions.
(b) Company. Parent and Merger Subsidiary Sub expressly reserves reserve the right to waive any of the Offer Conditions and to make any other changes in or modify or amend the terms of or conditions to of the Offer, including the Offer Price; provided that without the prior consent of the Company (which consent may be granted that, unless otherwise provided in this Agreement or withheld previously approved by the Company in its sole discretionwriting, Parent and Merger Sub shall not: (i) (A) decrease the Minimum Condition may not be waived, (B) no Offer Price or change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (ii) decrease the number of Shares sought to be purchased in the Offer, amends or adds (iii) impose conditions on the Offer in addition to the Offer Conditions Conditions, (iv) waive or amends any other term of amend the Minimum Condition, (v) amend the Offer Conditions in any a manner that is adverse to the stockholders holders of the CompanyShares, or (Cvi) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration or accelerate, extend or otherwise change the Expiration Date except as required or permitted by Section 1.1(e).
(d) On the date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offercommenced, 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Sub shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant Merger Sub to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO (collectively with all amendments and supplements thereto, the “Schedule TO”) with respect to the Schedule TO, which shall Offer that include a revised an offer to purchase and form of purchase, letter of transmittal reflecting transmittal, summary advertisement and other required ancillary Offer documents (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), ) and (ii) disseminate or cause to the extent required by applicable U.S. federal securities laws, cause be disseminated the Offer Documents to be disseminated to the holders of SharesShares as and to the extent required by applicable federal securities Law. Each of Parent, Parent and Merger Subsidiary and the Company agrees Sub agree that they shall cause the Schedule TO and the other Offer Documents filed by any of them Merger Sub with the SEC (x) to comply as to form in all material respects with the 1934 Exchange Act and the rules and regulations thereunder and other applicable Law Laws and that the Offer Documents, when filed with the SEC and on the date first published, sent or given (y) not to the stockholders of the Company, 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 misleading; provided, however, that no 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 Offer Documents. The Company hereby consents to the inclusion of the recommendation of the Company Board that the Company’s stockholders accept the Offer and tender their Shares pursuant to the Offer (except that the “Company Board Recommendation”) in the Offer Documents. The Company shall promptly furnish to Parent and Merger subsidiary shall have no obligation with respect Sub all information concerning the Company and the holders of Shares that may be required to any information be set forth in the Offer Documents supplied by applicable federal securities Laws or reasonably requested by Parent or Merger Sub in connection with any action contemplated by this Section 1.1(d), including communication of the Company or its Representatives in writing)Offer to the record and beneficial holders of Shares. Each of Parent, Merger Subsidiary and the Company Parties agrees to 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 it shall have become aware that such information shall have has become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLaw. The Parent and Merger Sub shall (i) promptly provide the Company and its counsel shall be given with a copy of any written comments (and a description of any oral comments) received by Parent, Merger Sub, or their counsel from the SEC or its staff with respect to the Offer Documents, (ii) provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and shall give reasonable consideration to any comments provided by the Company, and (Aiii) promptly provide the Company with copies of any responses to any such comments. Each of Parent and Merger Sub shall use reasonable best efforts to respond promptly to any comments (including oral comments) of the SEC or its staff with respect to the Offer Documents.
(e) The Offer shall initially be scheduled to expire at one (1) minute after 11:59 p.m., Eastern Time on the Schedule TO twentieth (20th) business day (for purposes of this Section 1.1(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following (and including the day of) the commencement of the Offer (unless otherwise agreed to by Parent and the Company) (the “Initial Expiration Date”) or, if the period of time for which the Offer Documents is open shall have been extended pursuant to, and in accordance with, this Section 1.1(e) or as may be required by applicable Law, 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 Section 1.1(e), the “Expiration Date”). Notwithstanding the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, (i) if, on the then-effective Expiration Date, any of the Offer Conditions have not been satisfied or waived (to the extent permitted hereunder), extend the Offer for one (1) or more periods of time of up to ten (10) business days each time before (the length of such period to be determined by Merger Sub), or for such longer period as the Parties may agree, in order to permit the satisfaction of the Offer Conditions, and (ii) extend the Offer for any such document is filed with period required by any rule, regulation, interpretation or position of the SEC after or the date hereof and (B) on staff thereof, NASDAQ or necessary to resolve any correspondence with comments of the SEC (including comment response letters) concerning or its staff applicable to the Offer or the Offer Documents; provided that, in the case of clauses (i) and (ii), neither Parent nor Merger Sub shall in any event be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the Outside Date; provided, further, that neither Parent nor Merger Subsidiary Sub shall give reasonable in any event be required to extend the Offer more than once, for a period of up to ten (10) business days, if, as of the applicable Expiration Date, all of the Offer Conditions are satisfied or have been waived other than the Minimum Condition. Merger Sub shall not, and good faith consideration Parent shall not cause Merger Sub to, extend the Offer if all Offer Conditions have been met. Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any comments made manner the right of the Company, Parent or Merger Sub to terminate this Agreement pursuant to Section 9.1. In the event that this Agreement is terminated pursuant to the terms hereof, 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 shall not acquire any Shares pursuant to the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 9.1, 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 depository acting on behalf of Merger Sub to return, all Tendered Shares to the registered holders thereof.
(f) The Offer Price shall be adjusted appropriately to reflect any reorganization, 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 the payment by Merger Sub for Shares validly tendered and not properly withdrawn in connection with the Offer; provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company and its counsel. Parent and Merger Subsidiary shall provide or the Company and its counsel with Subsidiary to take any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC action with respect to its securities that is prohibited by the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt terms of such comments, and, subject to the provisions hereof, promptly respond to such commentsthis Agreement.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, the Offeror agrees to mail no later than the Latest Mailing Date to the holders of Shares (the "Shareholders") of the Company an offer to purchase all of the outstanding Shares, including Shares issuable (and that, prior to the prior Expiry Time, are actually issued or are conditionally issued pursuant to Section 1.5) upon the exercise of Options, but excluding Shares owned by the Offeror and its affiliates, for consideration per Share of $13.75 in cash (as such offer may be amended or extended from time to time as permitted under this Agreement, the "Offer"). The Offer shall be subject only to the terms and conditions set out in Schedule "B" to this Agreement, as such may be amended in accordance with Section 1.1(c) hereof.
(b) The Offer will be made in all material respects in accordance with Applicable Laws and with applicable securities legislation in jurisdictions other than Canada where registered Shareholders are located in the English language and, if necessary under the Applicable Laws, the French language, provided that the Offeror shall not be required to make the Offer in any jurisdiction, other than Canada or the United States, where it would be illegal or, in the reasonable opinion of the Offeror, inadvisable to do so. The Offer will be open for acceptance until a time that is not earlier than 9:00 p.m. (Toronto time) on the 36th day, after the day that the Offer is mailed to Shareholders, or such later time and date as may be required by Applicable Laws, subject to the right of the Offeror in its sole discretion to extend from time to time the period during which Shares may be deposited under the Offer if the conditions set forth in Schedule "B" hereto are not satisfied on the expiry date of the Offer as it may be extended (the time at which the Offer, as it may be extended, expires being referred to as the "Expiry Time"). Subject to the satisfaction or waiver of the conditions set forth in Annex I Schedule "B" hereto, the Offeror shall within the time periods required by Applicable Laws take up and pay for all Shares validly tendered (the “Offer Conditions”), promptly after the later of (xand not properly withdrawn) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) as soon as practicable after the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Expiry Time. The Offeror shall (and Parent shall cause Merger Subsidiary to) use its commercially reasonable efforts 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditionsterms and conditions hereof.
(bc) Merger Subsidiary The Offeror expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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 mayright, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 to modify or waive any term or condition of the 1934 Act. Subject Offer except that, without the prior written consent of the Company, the Offeror shall not:
(i) reduce the consideration per Share;
(ii) change the form of consideration payable under the Offer (other than to add additional consideration);
(iii) otherwise add to, amend or change any of the Offer terms or conditions in a manner materially adverse to the foregoingShareholders;
(iv) increase the Minimum Tender Condition or decrease the Minimum Tender Condition to less than 50.01% of the outstanding Shares on a fully-diluted basis; or
(v) decrease the number of Shares sought under the Offer.
(d) The Offeror agrees to provide the Company with a draft copy of the Offer and Circular, including the requirements letter of Rule 14d-11transmittal, the notice of guaranteed delivery and any other documents required to be mailed by the Offeror to Shareholders under Applicable Laws in connection with the Offer, and any supplements or amendments to such documents (such documents, collectively, the "Offer Documents") prior to the filing or mailing thereof, on a confidential basis, and to provide the Company with a reasonable opportunity (to the extent possible with respect to supplements and amendments) to review and provide comments thereon, recognizing that whether or not such comments are reflected in the Offer Documents will be determined by the Offeror, acting reasonably. The Company shall provide to the Offeror all information pertaining to the Company and its Subsidiaries that is reasonably requested by the Offeror and is necessary or desirable for the preparation of the Circular.
(e) The obligation of the Offeror to make the Offer 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 and all of which may be waived by the Offeror in whole or in part in its sole discretion (other than the condition in paragraph 0 below, which may be waived only with the consent of the Company) without prejudice to any other rights it may have under this Agreement, which conditions shall be deemed to have been satisfied or waived upon the terms Offer being made:
(i) the obligations of the Offeror hereunder shall not have been terminated pursuant to Section 0;
(ii) no circumstance, fact, change, event or occurrence caused by a person other than the Offeror shall have occurred that would render it impossible for one or more of the conditions set out in Schedule "B" to be satisfied;
(iii) the board of directors of the Company shall have received the advice of its financial advisors and subject the board of directors of the Company shall have unanimously resolved to recommend that Shareholders accept the Offer and shall not have withdrawn such recommendation or changed, modified or qualified such recommendation or taken any other action or made any other public statement in connection with the Offer inconsistent with the determinations and recommendations referred to in Section 1.2(a);
(iv) the Company's financial advisor shall have delivered a written form of the opinion described in Section 1.2(b);
(v) no cease trade order, injunction or other prohibition at law (other than in China) shall exist against the Offeror making the Offer or taking up or paying for the Shares deposited under the Offer;
(vi) following the date hereof, there shall not have occurred any Material Adverse Effect in respect of the Company;
(vii) to the conditions extent that any covenants set forth herein may be performed or complied with prior to the date of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply have complied in all material respects with such covenants;
(viii) the 1934 Act Offeror shall have received from all applicable Government Authorities (A) all waivers, rulings, consents, approvals or orders on such terms as it, acting reasonably, deems necessary for the making of the Offer and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders mailing of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by to Shareholders, and (B) assurances satisfactory to the Company Offeror, acting reasonably, that all waivers, rulings, consent, approvals or its Representatives in writing). Each orders for the consummation of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to will be obtained before the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of SharesExpiry Time, in each case as and excluding PRC Approvals;
(ix) no later than one business day prior to the extent required by applicable U.S. federal securities laws. The Latest Mailing Date, the Company and shall have delivered to the depositary under the Offer, at its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and offices in Toronto, Ontario for mailing with the Offer Documents each time before any such document is filed a sufficient quantity of commercial copies of the Directors' Circular prepared in accordance with the SEC after terms of this Agreement; and
(x) lock-up agreements shall have been duly executed and delivered by Shareholders holding an aggregate of not less than 42% of the date hereof and Shares (Bincluding Shares issuable upon exercise of the Options) on any correspondence with a fully-diluted basis, including all of the SEC (including comment response letters) concerning the Offer or the Offer Documents, directors and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by officers of the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written not have been breached or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsterminated.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Article 7, as promptly as practicable after the date hereof, hereof (but in no event later than three Business Days following the public announcement of the execution of this AgreementJanuary 13, 2020), Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer to purchase for cash any and all (i) Shares (other than Shares to be cancelled in accordance with its terms Section 2.1(b)) at the Share Offer Price and (ii) Preferred Shares at the Preferred Share Offer Price. Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for all Shares and Preferred Shares, as applicable, validly tendered and not properly withdrawn pursuant to the Offer, subject only to: (a) there being validly tendered in the Offer (in the aggregate) and not properly withdrawn prior to the Expiration Date that number of Shares and Preferred Shares that, together with the number of Shares and Preferred Shares (if any) then owned by the Parent, equals at least a majority of the voting power represented by the Shares and Preferred Shares (voting on an as-converted basis in accordance with the Certificate of Designations) that are then issued and outstanding (the "Minimum Condition"); and (b) the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I.
(b) On or prior to the date that Merger Sub becomes obligated to pay for Shares and Preferred Shares pursuant to the Offer, Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for any and all Shares and Preferred Shares, as applicable, that Merger Sub shall become obligated to accept for payment each Share and purchase pursuant to the Offer. Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I, Merger Sub shall accept for payment (the time of such acceptance, the "Acceptance Time") and pay for all Shares and Preferred Shares validly tendered and not properly withdrawn pursuant to the Offer and promptly as soon as practicable following the acceptance of Shares for payment pursuant to Expiration Date, and, in any event, no more than two (2) Business Days after the Offer pay the Expiration Date. The Offer Price (without interest) for payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for paymentPreferred Share, and pay the Offer Price (without interest) foras applicable, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid to the satisfactionseller in cash, or waiver without interest, subject to any withholding of Taxes required by Parent or Merger Subsidiaryapplicable Law, on the terms and subject to the conditions set forth in this Agreement.
(c) The Offer shall be made by means of each an offer to purchase (the "Offer to Purchase") that describes the terms and conditions of the Offer Conditions.
(b) in accordance with applicable Law and this Agreement, including the conditions and requirements set forth in Annex I. To the extent permitted by applicable Law, Parent and Merger Subsidiary Sub expressly reserves reserve the right to waive any of increase the Offer Conditions and Price or to make any other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that without except with the prior consent written approval of the Company Company, Merger Sub shall not (which consent may be granted or withheld by i) decrease the Company in its sole discretion) (A) the Minimum Condition may not be waivedOffer Price, (Bii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends (iii) reduce the maximum number of Shares or adds Preferred Shares sought to be purchased in the Offer, (iv) amend, modify or waive the Minimum Condition, (v) amend any of the other conditions to the Offer Conditions set forth in Annex I in a manner adverse to the holders of Shares or amends Preferred Shares, (vi) impose conditions to the Offer that are in addition to the conditions to the Offer set forth in Annex I hereto, (vii) except as provided in Sections 1.1(e) and 1.1(f), terminate, accelerate or otherwise modify or amend the Offer to accelerate the Expiration Date, or (viii) otherwise modify or amend any of the other term terms of the Offer in any a manner adverse in any material respect to the stockholders holders of Shares or Preferred Shares.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at one minute after 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act) (such date and time, the "Initial Expiration Date") or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the "Expiration Date").
(e) If on any then scheduled Expiration Date, any of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten (10) Business Days each, or such longer period as may be agreed between Merger Sub and the Company, (C) in order to permit the expiration date satisfaction of such conditions; provided, however, that Merger Sub shall not be extended except as otherwise provided hereinrequired to extend the Offer beyond the Outside Date. The "Outside Date" shall be June 20, and 2020. In addition, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff.
(Df) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Date without the prior written consent of the Company, except if this Agreement has been terminated in the event that accordance with Article 7. If this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoingin accordance with Article 7, (x) Merger Subsidiary Sub shall (or at the request of the Company, and Parent shall cause Merger Subsidiary Sub to) extend promptly (and in any event within 24 hours following such termination), irrevocably and unconditionally terminate the Offer if at and shall not acquire any Shares or Preferred Shares pursuant thereto. If the scheduled Offer is terminated or extended expiration withdrawn by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, Merger Sub shall (and the Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares and Preferred Shares to the registered holders thereof and Merger Sub shall not (and Parent shall cause Merger Sub not to) accept any Shares or Preferred Shares pursuant to the Offer.
(g) As soon as practicable on the date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and Merger Subsidiary shallSub shall file with the SEC, 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 14d-3 under the 1934 Exchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the a Tender Offer and (2) validly tendered in the Subsequent Offering Period (the date Statement on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly(together with all amendments, but in no event later than twenty-four hourssupplements and exhibits thereto, after the receipt of such comments"Schedule TO"). The Schedule TO shall include, and, subject to the provisions hereof, promptly respond to such comments.as exhibits,
Appears in 1 contract
The Offer. (a) Provided that nothing this agreement shall not have occurred been terminated in accordance with section 8 and that no circumstances exist that would give rise result in a failure to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex Isection 1.1(c)(i) through (vi), SUB shall commence the Offer as promptly soon as practicable after the date hereofpracticable, but in no event later than three Business Days following the public fifth business day after the date of initial announcement of this agreement and the execution of this AgreementOffer. SUB shall accept for payment Shares that have been validly tendered, Merger Subsidiary shall amend and not withdrawn, pursuant to the Offer to (i) increase at the purchase price to $6.50 per Share (earliest time following expiration of the “Offer Price”), net to the seller in cash, (ii) provide that the all conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has have been satisfied, satisfied or waived by Parent or Merger Subsidiary, Merger Subsidiary SUB. SUB shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves have the right to waive any of increase the Per Share Amount payable in the Offer Conditions and or to make any other changes in the terms and conditions of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld that, unless previously approved by the Company HK in its sole discretion) (A) the Minimum Condition may not be waivedwriting, (B) no change may be made that (x) decreases the Per Share Amount payable in the Offer, (y) changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, amends Offer or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (Cz) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the imposes conditions to the Offer shall not be satisfied or waived, from time in addition to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Datethose set forth in section 1.1(c) or waivedbroadens the scope of those conditions; and further provided that (yI) Merger Subsidiary SUB shall have the right in its sole discretion to extend the Offer for up to a maximum of five additional business days if after 20 business days there shall not have been tendered sufficient Shares to consummate a Short Form Merger as described in section 2.9(c), (II) SUB may extend the Offer for such additional number of trading days as may be reasonably necessary to allow Shares tendered under "signature guarantees" to be delivered, and (III) if Parent or SUB determines, upon the advice of outside legal counsel, that any period required by any rule, regulation, interpretation supplement or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable amendment to the Offer; provided that Offer Documents (as defined in no event section 1.1(b)) is required to be circulated to the offerees, then Parent or SUB shall Merger Subsidiary be required have the right to extend the Offer beyond offer for such additional number of days as may be necessary under applicable law as determined by Parent and SUB, on 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 advice of counsel. The Per Share Amount 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. Subject paid net to the foregoingseller in cash, including the requirements less any required withholding of Rule 14d-11taxes, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly .
(b) As soon as practicable after on the expiration date of commencement of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and SUB shall cause its Affiliates to, (i) file with the SEC an amendment Securities and Exchange Commission (the "SEC") a tender offer statement on Schedule 14D-1 with respect to the Schedule TO, 1 2 Offer which shall include a revised will contain the offer to purchase and form of the related letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any supplements or amendments or supplements thereto, collectively, the “"Offer Documents”"), and (ii) to the extent required by applicable U.S. federal securities laws, cause the . The Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act provisions of applicable federal securities laws and the rules securities laws of the state of Delaware. The information provided and regulations thereunder to be provided by HK, Parent and other applicable Law and that SUB for use in the Offer DocumentsDocuments shall not, when on the date filed with the SEC and on the date first published, published or sent or given to the stockholders of Company's stockholders, as the Companycase may be, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)misleading. Each of Parent, Merger Subsidiary SUB and the Company agrees each 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 it shall have become false or misleading in any material respect. Merger Subsidiary shall, respect and SUB shall cause its Affiliates to, use their respective reasonable best efforts take all necessary steps to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO laws and the securities laws of the state of Delaware.
(c) Any other provision of this agreement or the Offer Documents each time before notwithstanding, SUB shall not be required to accept for payment or pay for, and may delay the acceptance for payment of, or the payment for, any such document is filed with Shares, and may terminate the SEC after Offer and not accept for payment or pay for any Shares, unless all of the date hereof and following conditions shall have been satisfied: (Bi) on no statute, rule, regulation, executive order, decree, court order, ruling or preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced by any correspondence with local, state or federal court or governmental authority in the SEC (including comment response letters) concerning United States that prohibits, restrains, enjoins or materially restricts the Offer or the consummation of the Offer Documentsor the Merger; (ii) any waiting period applicable to the consummation of the Offer or the Merger under the HSR Act (as defined in section 5.4) shall have terminated or expired; (iii) there shall not have occurred or been threatened any event or series of events or any condition or circumstance arisen that, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect (as defined in section 9.8) on HK, determined by reference to the business, assets, results of operations or financial condition of HK at July 31, 1995; (iv) the representations and warranties of HK contained in this agreement shall be true and correct in all material respects on and as of the date of consummation of the Offer as though made on and as of that date, except (i) for changes occurring after the date of this agreement that are specifically permitted by this agreement, including changes resulting from conduct permitted under section 5.1, and Merger Subsidiary (ii) that those representations and warranties that address matters only as of a particular date shall give reasonable remain true and good faith consideration correct as of that date; and Parent and SUB shall have been furnished with a certificate of HK to the effect of the matters referred to above (and only excepting the matters referred to in items (i) and (ii) above) executed by its Chairman in form and substance satisfactory to Parent and SUB; (v) HK shall have performed and complied in all material respects with all obligations, covenants, agreements and conditions required by this agreement to be performed or complied with by it prior to or on the date of consummation of the Offer, and Parent and SUB shall have been furnished with a certificate of HK to that effect executed by its Chairman in form and substance satisfactory to Parent and SUB; (vi) Parent and/or SUB shall have obtained financing pursuant to the Financing Commitment Letter referred to in section 4.4 or other financing arrangements on terms not materially more adverse to the borrower than the terms of the Financing Commitment Letter (the "Financing Condition"); and (vii) at least 90% of the outstanding Shares shall have been tendered in the Offer (the "90% Minimum Condition"). The conditions set forth above are for the sole benefit of SUB and Parent only and may be asserted by SUB and Parent regardless of the circumstances giving rise to any comments made such condition (including the termination of this agreement by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written SUB or oral comments Parent) or may be waived by SUB or Parent, Merger Subsidiary in whole or in part at any time and 2 3 from time to time, in their respective Affiliates sole discretion. The failure by SUB or counsel Parent at any time to exercise any of the rights set forth in this provision shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may receive be asserted at any time and from the SEC time to time. Any determination by SUB or Parent with respect to any of the Offer Documents promptlyconditions referred to (including, but in no event later than twenty-four hourswithout limitation, after the receipt satisfaction of such comments, and, subject to conditions) shall be final and binding on the provisions hereof, promptly respond to such commentsparties.
Appears in 1 contract
Sources: Merger Agreement (Huffman Koos Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise been terminated and subject to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date terms hereof, but in no event later than three Business Days following within ten (10) business days after the public announcement of the execution hereof by the parties, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, Merger Subsidiary shall amend as amended (the "EXCHANGE ACT")), the Offer for all of the Shares, at the Offer Price. The obligation of Purchaser to accept for payment and to pay for any Shares tendered (and the obligation of Parent to cause Purchaser to accept for payment and to pay for any Shares tendered) shall be subject only to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents at least a majority of the total number of Shares outstanding on a fully-diluted basisbasis (including for purposes of such calculation all Shares issuable upon exercise of all vested Company Stock Options (as defined in Section 3.4(a) and unvested Company Stock Options that vest (or upon consummation of the Offer will vest) prior to the Final Date (as defined in Section 9.1), without regard but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered and not withdrawn prior to whether any convertible the expiration of the Offer or exchangeable securities are then vested and exercisable otherwise already be beneficially owned by Parent or Purchaser (the “Minimum Condition”"MINIMUM CONDITION"), and (ii) and to the satisfaction or the waiver by Purchaser of the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary 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) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary A. Purchaser expressly reserves the right to waive any of such condition, to increase the Offer Conditions and Price or to make any other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that without the prior consent of the Company (which consent may be granted or withheld unless previously approved by the Company in its sole discretion) (A) the Minimum Condition may not be waivedwriting, (B) no change may be made that (i) decreases the Offer Price, (ii) changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, amends or adds (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) imposes conditions to the Offer Conditions or in addition to those set forth in Annex A, (v) amends the conditions set forth in Annex A to broaden the scope of such conditions, (vi) amends any other term of the Offer in any a manner adverse to the stockholders holders of the Shares, (vii) extends the Offer except as provided in Section 2.1(b), or (viii) amends or waives the Minimum Condition. It is agreed that the conditions set forth in Annex A are for the sole benefit of Parent and Purchaser and may be waived by Parent and Purchaser, 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 approval of the Company is required. The failure by Parent and Purchaser 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 any of its Subsidiaries will be tendered in the Offer.
(b) Subject to the terms and conditions hereof, the Offer shall expire at midnight, New York City time, on the date that is twenty-five (25) business days after the date the Offer is commenced; provided, however, that without the consent of the Company's Board of Directors (the "COMPANY BOARD"), Purchaser may (Ci) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior from time to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) time extend the Offer Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 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. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, 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 any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.been
Appears in 1 contract