Common use of The Offers Clause in Contracts

The Offers. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in paragraphs (a) (except to the extent any such suit, action or proceeding described in such paragraph (a) has been brought or commenced by a United States Trustee in a Bankruptcy Case), (b), (c), (d), (e), (h), (i) and (k) of Annex I shall have occurred, as promptly as practicable, and in any event, within ten business days of the date hereof, Purchaser shall simultaneously 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”)) each of the Offers to purchase for cash all Shares at the Offers Price, subject to (i) there being validly tendered in the Offers (in the aggregate) and not withdrawn prior to the expiration of the Offers that number of Shares which, together with the Shares then beneficially owned by Parent or Purchaser, represents at least a majority of the Shares outstanding on a fully-diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors (collectively, the “Minimum Condition”) and (ii) the other conditions set forth in Annex I. Subject to the prior satisfaction or waiver by Parent or Purchaser of the Minimum Condition and the other conditions of the Offers set forth in Annex I, Purchaser shall consummate the Offers in accordance with their terms and accept for payment and pay for all Shares tendered pursuant to the Offers as soon as practicable after Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offers (and the first date upon which Purchaser may accept Shares tendered pursuant to the Offers) shall be the later of the date that is (i) 30 business days following the first public announcement of this Agreement by Parent or (ii) 20 business days following the commencement of the Offers (the “Initial Expiration Date”). The obligations of Purchaser to commence the Offers and accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offers and not withdrawn shall be subject to the Minimum Condition and the other conditions set forth in Annex I. The Offers shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the Stockholder Agreement in effect as of the date hereof, the Minimum Condition and the other conditions set forth in Annex I. Purchaser shall not decrease the Offers Price, pay a different price in one Offer than the other, change the form of consideration payable in the Offers, decrease the number of Shares sought in the Offers, impose additional conditions to the Offers or amend any other condition to the Offers in any manner adverse to the holders of the Shares without the prior written consent of the Company (such consent, subject to Section 9.1, to be authorized by the Company Board of Directors); provided, however, that (x) if on the Initial Expiration Date (as it may be extended), all conditions to the Offers shall not have been satisfied or waived, Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date for such period as Purchaser may determine to a date that is no later than the Drop Dead Date and (y) Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. In addition, Parent and Purchaser agree that if at any one or more scheduled expiration dates of the Offers, the HSR Condition, the Litigation Condition, the Governmental Approval Condition (which for purposes of this Section 1.1(a) shall also be deemed to include the conditions set forth in paragraphs (h) and (j) (to the extent arising out of litigation) of Annex I) or the Stockholder Approval Condition, in each case, set forth in Annex I have not been satisfied or waived, but at such scheduled expiration date all of the other conditions to the Offers set forth in Annex I shall then be satisfied, or if not then satisfied, are reasonably capable of being satisfied, then, at the request of the Company (received at least 24 hours prior to the then-scheduled expiration date of the Offers and confirmed in writing), Purchaser shall extend the Offers from time to time, in the case of the Litigation Condition, Governmental Approval Condition or the Stockholder Approval Condition not being satisfied, to a date that is no later than January 31, 2005, and, in the case of the HSR Condition or the Litigation Condition (to the extent relating solely to antitrust and competition law matters) not being satisfied, to a date that is no later than April 30, 2005. Without limiting the right of Purchaser to extend the Offers, in the event that Parent shall receive a Notice of Superior Proposal at any time, Purchaser shall, if the Matching Bid Date shall be later than the scheduled expiration date of the Offers, extend the Offers until 5:00 p.m. Eastern Time on the later of (i) the earlier of (x) the second full business day after Parent’s delivery of a Matching Bid, if any, or (y) the first full business day after Purchaser notifies the Company in writing that Purchaser waives any and all rights to make a Matching Bid under Section 5.3(b) (and releases the Company from its obligations with respect thereto) or fails to provide such notice to the Company and (ii) in the event the Company establishes a Final Deadline pursuant to Section 5.3(b), the second full business day following such Final Deadline (the later of the dates specified in clauses (i) and (ii) above, the “Matching Bid Date”). Purchaser may increase the Offers Price and extend the Offers to the extent required by law in connection with such increase, in each case in its sole discretion and without the Company’s consent. Notwithstanding anything herein to the contrary, any increase or decrease in the Offers Price, modification, amendment or waiver of any terms of or conditions to any Offer, consents with respect to any Offer or extension if relevant or applicable of any Offer shall, in each case, be made to both Offers simultaneously or not at all. Purchaser shall not terminate the Offers prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company except in the event that Purchaser terminates this Agreement pursuant to Section 8.1. (b) As soon as practicable on the date the Offers are commenced, Parent and Purchaser shall file with the Securities and Exchange Commission (the “SEC”), pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Class A Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include the summary term sheet required under Regulation M-A and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Parent and Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by law. Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents, as so corrected (if applicable), to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. 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 Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Purchaser agree to provide the Company and its counsel in writing with any comments, whether written or oral, that Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO and the Offer Documents promptly after Parent’s or Purchaser’s, as the case may be, receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. If the Offers are terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offers, Parent and Purchaser shall promptly return, and shall cause any depository or paying agent, including the Paying Agent, acting on behalf of Parent and Purchaser, to return all tendered Shares to the registered holders thereof.

The Offers. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in paragraphs (a) (except to the extent any such suit, action or proceeding described in such paragraph (a) has been brought or commenced by a United States Trustee in a Bankruptcy Case), (b), (c), (d), (e), (h), (i) and (k) of Annex I shall have occurred, as promptly as practicable, and in any event, within ten business days of the date hereof, Purchaser shall simultaneously 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”")) each of the Offers to purchase for cash all Shares at the Offers Price, subject to (i) there being validly tendered in the Offers (in the aggregate) and not withdrawn prior to the expiration of the Offers that number of Shares which, together with the Shares then beneficially owned by Parent or Purchaser, represents at least a majority of the Shares outstanding on a fully-diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors (collectively, the “"Minimum Condition”") and (ii) the other conditions set forth in Annex I. Subject to the prior satisfaction or waiver by Parent or Purchaser of the Minimum Condition and the other conditions of the Offers set forth in Annex I, Purchaser shall consummate the Offers in accordance with their terms and accept for payment and pay for all Shares tendered pursuant to the Offers as soon as practicable after Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offers (and the first date upon which Purchaser may accept Shares tendered pursuant to the Offers) shall be the later of the date that is (i) 30 business days following the first public announcement of this Agreement by Parent or (ii) 20 business days following the commencement of the Offers (the “"Initial Expiration Date”"). The obligations of Purchaser to commence the Offers and accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offers and not withdrawn shall be subject to the Minimum Condition and the other conditions set forth in Annex I. The Offers shall be made by means of an offer to purchase (the “"Offer to Purchase”") that contains the terms set forth in this Agreement and the Stockholder Agreement in effect as of the date hereof, the Minimum Condition and the other conditions set forth in Annex I. Purchaser shall not decrease the Offers Price, pay a different price in one Offer than the other, change the form of consideration payable in the Offers, decrease the number of Shares sought in the Offers, impose additional conditions to the Offers or amend any other condition to the Offers in any manner adverse to the holders of the Shares without the prior written consent of the Company (such consent, subject to Section 9.1, to be authorized by the Company Board of Directors); provided, however, that (x) if on the Initial Expiration Date (as it may be extended), all conditions to the Offers shall not have been satisfied or waived, Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date for such period as Purchaser may determine to a date that is no later than the Drop Dead Date and (y) Purchaser may, in its sole discretion, provide a “"subsequent offering period” " in accordance with Rule 14d-11 under the Exchange Act. In addition, Parent and Purchaser agree that if at any one or more scheduled expiration dates of the Offers, the HSR Condition, the Litigation Condition, the Governmental Approval Condition (which for purposes of this Section 1.1(a) shall also be deemed to include the conditions set forth in paragraphs (h) and (j) (to the extent arising out of litigation) of Annex I) or the Stockholder Approval Condition, in each case, set forth in Annex I have not been satisfied or waived, but at such scheduled expiration date all of the other conditions to the Offers set forth in Annex I shall then be satisfied, or if not then satisfied, are reasonably capable of being satisfied, then, at the request of the Company (received at least 24 hours prior to the then-scheduled expiration date of the Offers and confirmed in writing), Purchaser shall extend the Offers from time to time, in the case of the Litigation Condition, Governmental Approval Condition or the Stockholder Approval Condition not being satisfied, to a date that is no later than January 31, 2005, and, in the case of the HSR Condition or the Litigation Condition (to the extent relating solely to antitrust and competition law matters) not being satisfied, to a date that is no later than April 30, 2005. Without limiting the right of Purchaser to extend the Offers, in the event that Parent shall receive a Notice of Superior Proposal at any time, Purchaser shall, if the Matching Bid Date shall be later than the scheduled expiration date of the Offers, extend the Offers until 5:00 p.m. Eastern Time on the later of (i) the earlier of (x) the second full business day after Parent’s 's delivery of a Matching Bid, if any, or (y) the first full business day after Purchaser notifies the Company in writing that Purchaser waives any and all rights to make a Matching Bid under Section 5.3(b) (and releases the Company from its obligations with respect thereto) or fails to provide such notice to the Company and (ii) in the event the Company establishes a Final Deadline pursuant to Section 5.3(b), the second full business day following such Final Deadline (the later of the dates specified in clauses (i) and (ii) above, the “"Matching Bid Date”"). Purchaser may increase the Offers Price and extend the Offers to the extent required by law in connection with such increase, in each case in its sole discretion and without the Company’s 's consent. Notwithstanding anything herein to the contrary, any increase or decrease in the Offers Price, modification, amendment or waiver of any terms of or conditions to any Offer, consents with respect to any Offer or extension if relevant or applicable of any Offer shall, in each case, be made to both Offers simultaneously or not at all. Purchaser shall not terminate the Offers prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company except in the event that Purchaser terminates this Agreement pursuant to Section 8.1. (b) As soon as practicable on the date the Offers are commenced, Parent and Purchaser shall file with the Securities and Exchange Commission (the “"SEC”"), pursuant to Regulation M-A under the Exchange Act (“"Regulation M-A”"), a Tender Offer Statement on Schedule TO with respect to the Class A Offer (together with all amendments, supplements and exhibits thereto, the “"Schedule TO”"). The Schedule TO shall include the summary term sheet required under Regulation M-A and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents”"). Parent and Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by law. Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents, as so corrected (if applicable), to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. 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 Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Purchaser agree to provide the Company and its counsel in writing with any comments, whether written or oral, that Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO and the Offer Documents promptly after Parent’s 's or Purchaser’s's, as the case may be, receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. If the Offers are terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offers, Parent and Purchaser shall promptly return, and shall cause any depository or paying agent, including the Paying Agent, acting on behalf of Parent and Purchaser, to return all tendered Shares to the registered holders thereof.

The Offers. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events set forth in paragraphs (a) (except to the extent any such suit, action or proceeding described in such paragraph (a) has been brought or commenced by a United States Trustee in a Bankruptcy Case), (b), (c), (d), (e), (h), (i) and (k) of Annex I shall have occurred, as promptly as practicable, and in any event, within ten business days of the date hereof, Purchaser shall simultaneously 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”")) each of the Offers to purchase for cash all Shares at the Offers Price, subject to (i) there being validly tendered in the Offers (in the aggregate) and not withdrawn prior to the expiration of the Offers that number of Shares which, together with the Shares then beneficially owned by Parent or Purchaser, represents at least a majority of the Shares outstanding on a fully-diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors (collectively, the “"Minimum Condition”") and (ii) the other conditions set forth in Annex I. Subject to the prior satisfaction or waiver by Parent or Purchaser of the Minimum Condition and the other conditions of the Offers set forth in Annex I, Purchaser shall consummate the Offers in accordance with their terms and accept for payment and pay for all Shares tendered pursuant to the Offers as soon as practicable after Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offers (and the first date upon which Purchaser may accept Shares tendered pursuant to the Offers) shall be the later of the date that is (i) 30 business days following the first public announcement of this Agreement by Parent or (ii) 20 business days following the commencement of the Offers (the “"Initial Expiration Date”"). The obligations of Purchaser to commence the Offers and accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offers and not withdrawn shall be subject to the Minimum Condition and the other conditions set forth in Annex I. The Offers shall be made by means of an offer to purchase (the “"Offer to Purchase”") that contains the terms set forth in this Agreement and the Stockholder Agreement in effect as of the date hereof, the Minimum Condition and the other conditions set forth in Annex I. Purchaser shall not decrease the Offers Price, pay a different price in one Offer than the other, change the form of consideration payable in the Offers, decrease the number of Shares sought in the Offers, impose additional conditions to the Offers or amend any other condition to the Offers in any manner adverse to the holders of the Shares without the prior written consent of the Company (such consent, subject to Section 9.1, to be authorized by the Company Board of Directors); provided, however, that (x) if on the Initial Expiration Date (as it may be extended), all conditions to the Offers shall not have been satisfied or waived, Purchaser may, from time to time, in its sole discretion, extend the Initial Expiration Date for such period as Purchaser may determine to a date that is no later than the Drop Dead Date and (y) Purchaser may, in its sole discretion, provide a “"subsequent offering period” " in accordance with Rule 14d-11 under the Exchange Act. In addition, Parent and Purchaser agree that if at any one or more scheduled expiration dates of the Offers, the HSR Condition, the Litigation Condition, the Governmental Approval Condition (which for purposes of this Section 1.1(a) shall also be deemed to include the conditions set forth in paragraphs (h) and (j) (to the extent arising out of litigation) of Annex I) or the Stockholder Approval Condition, in each case, set forth in Annex I have not been satisfied or waived, but at such scheduled expiration date all of the other conditions to the Offers set forth in Annex I shall then be satisfied, or if not then satisfied, are reasonably capable of being satisfied, then, at the request of the Company (received at least 24 hours prior to the then-scheduled expiration date of the Offers and confirmed in writing), Purchaser shall extend the Offers from time to time, in the case of the Litigation Condition, Governmental Approval Condition or the Stockholder Approval Condition not being satisfied, to a date that is no later than January 31, 2005, and, in the case of the HSR Condition or the Litigation Condition (to the extent relating solely to antitrust and competition law matters) not being satisfied, to a date that is no later than April 30, 2005. Without limiting the right of Purchaser to extend the Offers, in the event that Parent shall receive a Notice of Superior Proposal at any time, Purchaser shall, if the Matching Bid Date shall be later than the scheduled expiration date of the Offers, extend the Offers until 5:00 p.m. Eastern Time on the later of (i) the earlier of (x) the second full business day after Parent’s 's delivery of a Matching Bid, if any, or (y) the first full business day after Purchaser notifies the Company in writing that Purchaser waives any and all rights to make a Matching Bid under Section 5.3(b) (and releases the Company from its obligations with respect thereto) or fails to provide such notice to the Company and (ii) in the event the Company establishes a Final Deadline pursuant to Section 5.3(b), the second full business day following such Final Deadline (the later of the dates specified in clauses (i) and (ii) above, the “"Matching Bid Date”"). Purchaser may increase the Offers Price and extend the Offers to the extent required by law in connection with such increase, in each case in its sole discretion and without the Company’s 's consent. Notwithstanding anything herein to the contrary, any increase or decrease in the Offers Price, modification, amendment or waiver of any terms of or conditions to any Offer, consents with respect to any Offer or extension if relevant or applicable of any Offer shall, in each case, be made to both Offers simultaneously or not at all. Purchaser shall not terminate the Offers prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company except in the event that Purchaser terminates this Agreement pursuant to Section 8.1. (b) As soon as practicable on the date the Offers are commenced, Parent and Purchaser shall file with the Securities and Exchange Commission (the “SEC”), pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Class A Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include the summary term sheet required under Regulation M-A and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Parent and Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by law. Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents, as so corrected (if applicable), to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. 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 Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Purchaser agree to provide the Company and its counsel in writing with any comments, whether written or oral, that Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO and the Offer Documents promptly after Parent’s or Purchaser’s, as the case may be, receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. If the Offers are terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offers, Parent and Purchaser shall promptly return, and shall cause any depository or paying agent, including the Paying Agent, acting on behalf of Parent and Purchaser, to return all tendered Shares to the registered holders thereof.