CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more of the following events shall have occurred: (a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal; (b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above; (c) there shall have occurred a Material Adverse Effect with respect to Signal; (i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions; (e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms; (f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer; (g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or (h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.
Appears in 3 contracts
Sources: Offer to Purchase (Crane Co /De/), Offer to Purchase (Crane Co /De/), Offer to Purchase (Signal Technology Corp)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding Annex A to the Merger Agreement provides that notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the OfferMerger Agreement), Purchaser shall not be required to accept for payment or, subject to any the applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActCommission, pay for, and may delay the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, payment for, any Shares tendered pursuant to the Offer, and may terminate the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to accept for payment any Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (iix) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall has not have expired or been terminated prior to the expiration of the Offer Offer, (y) the Minimum Condition has not been satisfied or (iiiz) at any time on or after the date of the Merger Agreement and prior to any before the time of acceptance for payment or payment for any of Shares pursuant to the Offer, any one or more of the following events shall have occurred:
: (a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated promulgated, or deemed applicable applicable, pursuant to the Offer and/or the Mergeran authoritative interpretation by or on behalf of a Governmental Entity, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR ActMerger, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (iiior that of any of their respective subsidiaries or affiliates) of subsection (a) above;
(c) there shall have occurred all or a Material Adverse Effect with respect to Signal;
(i) portion of their or the Board of Directors of Signal shall have withdrawn, modifiedCompany's businesses or assets, or changed its approval to compel Parent or recommendation in respect Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the Merger Agreement, the Merger business or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 assets of the Merger Agreement (regardingCompany or Parent and their respective subsidiaries, among other thingswhich prohibition, solicitation of Competing Transactions)limitation, disposition or (iv) the Board of Directors of Signal shall have resolved hold separate obligation could reasonably be expected to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal Parent, (ii) restrains or prevent prohibits the making or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect Offer or the Merger or the performance of any of its obligations required to be performed the other transactions contemplated by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up (iii) imposes material limitations on the ability of Purchaser, or renders Purchaser unable, to thirty (30) business days to cure such breach; or
(h) there shall have occurredaccept for payment, and continued to exist, (x) a declaration of a banking moratorium pay for or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities purchase some or other national or international calamity involving the United States or, in the case of any all of the foregoing occurrences existing on or at Shares pursuant to the time of Offer and the commencement of the Offer, a material worsening or acceleration thereofMerger, or (ziv) a imposes material limitation (whether or not mandatory) by any Governmental Authority limitations on the extension ability of credit Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by banks or other lending institutions, which in it on all matters properly presented to the case of clauses (x), (y) Company's stockholders; or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003b). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.
Appears in 3 contracts
Sources: Offer to Purchase (Falcon Products Inc /De/), Offer to Purchase (Falcon Products Inc /De/), Offer to Purchase (Shelby Williams Industries Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer or the Merger Agreement, and in addition to (and not in limitation of) the Purchaser's right to amend the Offer, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including including, without limitation, Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or to return tendered Shares promptly after termination or withdrawal of the Offer), pay for any Shares tendered pursuant to the Offer, and may postpone the acceptance for payment or, subject to the restrictions referred to above, payment for, any Shares tendered pursuant to the Offer, and may terminate or amend the Offer if and not accept for payment any Shares if:
(i) there the Minimum Tender Condition shall not have been validly tendered and not withdrawn satisfied or waived pursuant to the Merger Agreement prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), Expiration Date,
(ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or terminated,
(iii) at any time on or after the date of the Merger Agreement and prior to any before the acceptance of the Shares for payment or payment for any Shares pursuant to the Offertherefor, any one or more of the following events shall have occurredconditions exist:
(a) there There shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail has a reasonable likelihood of success brought by any governmental authority against Best Buy, Musicland or any of their respective subsidiaries
(i1) challenging or seeking to make illegal, materially delay or otherwise directly or indirectly restrain or prohibit the making of the Offer, the acceptance for payment of, or consummation of payment for, any Shares by the Purchaser pursuant to the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits consummation of the Merger, or seeking to obtain damages in connection with any such transactions that would result in a Material Adverse Effect on Musicland;
(ii2) seeking to prohibit or materially limit the ownership or operation by SignalMusicland, Crane Best Buy or any of their respective subsidiaries of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal Musicland and its subsidiaries, or Crane and/or Best Buy or any of its subsidiaries, or to compel Musicland, Best Buy or any of their respective subsidiaries to dispose of or hold separate all or any material portion of their respective businesses, as a result of the Offer or the Merger or Merger;
(iii3) seeking to impose material limitations on the ability of Crane Best Buy, the Purchaser or Purchaser any other affiliate of Best Buy to acquire or hold, or exercise effectively full rights of ownership of, any Shares acquired by the Purchaser in the Offer or the Merger, including the right to vote any Shares on matters properly presented to the stockholders of Musicland, including the approval and adoption of the Merger Agreement, the plan of merger included in the Certificate of Merger, the Merger and the other transactions contemplated thereby; or
(4) seeking to prohibit Best Buy or any of its subsidiaries from effectively controlling in any respect the business or operations of Musicland and its subsidiaries.
(b) There shall have been promulgated, enacted, entered, enforced, or deemed applicable to the Offer or the Merger, by any governmental authority, any law (other than the HSR Act), or there shall have been issued any injunction, order or decree by any governmental authority, which (1) restrains or prohibits the making of the Offer or the consummation of the Merger; (2) prohibits or limits ownership or operation by Musicland, Best Buy or the Purchaser of all or any material portion of the business or assets of Musicland or any of its subsidiaries, or compels Musicland, Best Buy or any of their respective subsidiaries to dispose of or hold separate all or any material portion of the business or assets of Musicland or any of its subsidiaries, in each case as a result of the consummation of the Offer, or the Merger; (3) imposes limitations on the ability of Best Buy or the Purchaser to exercise effectively full rights of ownership of Sharesany Shares acquired by the Purchaser in the Offer or the Merger, including, without limitation, including the right to vote any such Shares on all matters properly presented to the stockholders of Signal;
(b) any statuteMusicland, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to including the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect and adoption of the Merger Agreement, the plan of merger included in the Certificate of Merger, the Merger and the other transactions contemplated thereby; or (4) requires divestiture by Best Buy or the Purchaser of any Shares acquired by the Purchaser in the Offer or the Merger;
(c) Any representation or warranty of Musicland in a manner adverse to the Merger Agreement (which shall be read as though none of them contained any Material Adverse Effect or materiality qualifications) shall not be true and correct in all respects in each case as of the date of the scheduled Expiration Date of the Offer, as such date may be extended in accordance with the Merger Agreement (other than representations and warranties made as of a specified date) and the failure to be true and correct, when taken together with all other such failures of the representations and warranties of Musicland in the Merger Agreement (other than representations and warranties made as of a specified date) to be true and correct in all respects, in the aggregate, has had or adverse to Crane or Purchaser, would have a Material Adverse Effect on Musicland;
(iid) the Board of Directors of Signal Musicland shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of its obligations Musicland to be performed or complied with by it under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actionsAgreement;
(e) Signal, Purchaser and Crane The Musicland Board of Directors shall have agreed modified or amended its recommendation of the Offer or the Merger in writing any manner adverse to terminate Best Buy or the OfferPurchaser, recommended acceptance of any Company Acquisition Proposal, or resolved to do any of the foregoing;
(f) There shall have occurred and continued to exist any general suspension of, or limitation on, trading in securities on any national securities exchange or in the over-the-counter market in the United States (other than any suspension or limitation on trading in any particular security as a result of a computerized trading limit or any intraday suspension due to "circuit breakers");
(g) The U.S. Federal Reserve Board or any other federal governmental authority shall have declared a general banking moratorium or general suspension of payments in respect of banks or any limitation (whether or not mandatory) on the extension of credit by banks or other lending institutions in the United States;
(h) Except as disclosed in Musicland SEC documents or the disclosure letter to the Merger Agreement, there shall have occurred any change, event or development which, either individually or in the aggregate, would or is reasonably likely to have a Material Adverse Effect on Musicland; or
(i) The Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane the Purchaser and Purchaser Best Buy and may be asserted by Crane the Purchaser or Purchaser regardless of the circumstances giving rise to any such conditions and Best Buy or may be waived by Crane the Purchaser or Purchaser, by express and specific action to that effect, Best Buy in whole or in part, part at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions ; provided that the Minimum Tender Condition may not be waived or amended without the prior written consent of the Merger AgreementMusicland. The failure by Crane Best Buy or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of such right; the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time. Should the Offer be terminated pursuant to the foregoing, all tendered Shares not theretofore accepted for payment shall forthwith be returned by the Depositary to the tendering stockholders. A public announcement will be made of a material change in, or waiver of, such conditions to the extent required by Rules 14d-4(c) and 14d-6(d) under the Exchange Act, and the Offer will be extended in connection with any such change or waiver to the extent required by such rules.
Appears in 2 contracts
Sources: Offer to Purchase (Best Buy Co Inc), Offer to Purchase (Best Buy Co Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, the Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares tendered pursuant to Rights assigned, or may terminate or amend the Offer if (i) there shall not have been validly tendered and not withdrawn prior to Offer, or may postpone the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares Rights assigned, if fewer than $22,206,250 (50%) in aggregate Face Value of the Rights are properly assigned and the assignments are not revoked prior to the Expiration Date, or if at any time before payment for any Rights assigned (whether or not any other Rights have theretofore been accepted for payment or paid for pursuant to the Offer), any one or more of the following events shall have occurredoccur:
(a) there any change (or any condition, event or development involving a prospective change) shall be instituted have occurred or be pending by any person been threatened or Governmental Authority any suitshall have become known to the Purchaser in the business, action properties, assets, liabilities, financial condition, operations, prospects or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation results of operations of the Offer Company or the Merger or to substantially deprive Crane of any of its anticipated benefits subsidiaries or affiliates which has or may have material adverse significance with respect to the Company and its subsidiaries and affiliates, taken as a whole, or the value of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;Company's Common Stock.
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modifiedgeneral suspension of, or changed its approval or recommendation limitation on prices for, trading in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchasersecurities on The Nasdaq National Market, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of federal or state banks in the United States of any limitation on, or any other condition, event or development which may affect, the extension of credit by lending institutions in the United States, or in any other country, (yiii) a commencement of a war, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States, (iv) material change in United States oror any other currency exchange rates or a suspension of, or limitation on the market therefor or (v) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof;
(c) the Company or acceleration thereofany subsidiary or affiliate of the Company shall, on or after June 10, 1998, have (i) issued or sold, or authorized or proposed the issuance or sale of, any shares of capital stock of any class, or any securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or convertible securities, except (a) the issuance of shares upon the exercise, in accordance with the terms thereof in effect on June 10, 1998, of employee stock options outstanding on June 10, 1998, and (b) pursuant to the terms of any agreement with the Company's strategic corporate partners as disclosed in the 1997 10-K and the March 10-Q, (ii) issued, sold, authorized or proposed the issuance or sale of any other securities in respect of, in lieu or in substitution for shares of its Common Stock outstanding on June 10, 1998, (iii) declared or paid any dividend or distribution on any shares of its capital stock, or (ziv) authorized, proposed, recommended or entered into or granted any option or other right with respect to, or announced any intention to authorize, propose, recommend or enter into or grant any option or right with respect to any merger, consolidation, business combination, acquisition of assets or securities, disposition of assets, disposition of shares of a subsidiary or affiliate, or any material limitation change in its capitalization, any relinquishment of any material contractual rights, or any comparable event not in the ordinary course of business or taken any action to implement any such transaction previously authorized, recommended or proposed, other than recommendations concerning the Offer;
(d) any action or proceeding shall be taken, instituted, proposed or threatened, or any statute, rule, regulation or order shall be proposed, introduced, enacted, promulgated, entered, enforced or deemed applicable to the Offer by or before any domestic or foreign government, court, agency, authority or instrumentality or any official or representative of any of the foregoing (each being referred to herein as a "Governmental Agency") or by any other person, domestic or foreign, which may (i) challenge the making or completion of the Offer or closing of the transactions contemplated by the Rights Exchange Agreement or otherwise directly or indirectly relate to the making or completion of the Offer, or the execution, delivery or performance by any party of the Rights Exchange Agreement (ii) result in a delay in or restrict the ability of the Purchaser to accept for payment or to pay for some or all of the Rights pursuant to the Offer, or make the consummation of the Offer unduly burdensome to the Purchaser, (iii) render the Purchaser unable to accept for payment or to pay for some or all of the Rights pursuant to the Offer, (iv) make the acceptance for payment or payment for some or all of the Rights illegal or otherwise restrict or prohibit consummation of the Offer (whether under any federal or not mandatory) by any Governmental Authority on the extension of credit by banks state law or other lending institutions, which in the case of clauses (xotherwise), (yv) seek to prohibit ownership or require the divestiture by the Purchaser or any of the Purchaser's subsidiaries or affiliates of any Rights or impose any limitation on the ability of any of them to acquire or own Rights, (vi) impose any limitation on the ability of the Purchaser or any of the Purchaser's subsidiaries or affiliates to exercise effectively all rights of ownership with respect to the Rights or the Shares, (vii) impose any limitation upon the ability of the Purchaser or any of the Purchaser's subsidiaries or affiliates effectively to enforce or enjoy the benefit of Purchaser's rights under the Rights Exchange Agreement, (viii) prohibit or impose any limitation upon Purchaser's ownership of the Rights, the Shares, or the Warrants or compel the Purchaser or the Company to divest or hold separate all or any portion of the business or assets of the Purchaser or the Company (including the businesses or assets of any of their respective subsidiaries and affiliates) or impose any limitation on any of them in the conduct of their businesses, or (zix) prevents Crane from borrowing money pursuant otherwise adversely affect the Purchaser or the Company or any of their respective subsidiaries or affiliates;
(e) the Company or any of its subsidiaries or affiliates shall have proposed or adopted any amendment to any of their articles of incorporation or bylaws or similar organizational documents, or the Purchaser shall have learned that the Company or any of its credit facilities subsidiaries or affiliates shall have adopted any such amendment which shall not have been publicly disclosed prior to June 10, 1998;
(f) any condition set forth in effect on the date Rights Exchange Agreement has not been satisfied immediately prior to the Expiration Date or any impediment to closing the transactions contemplated by the Rights Exchange Agreement exists; or
(g) the failure of the Merger Company to inform the Purchaser in writing immediately prior to the Expiration Date that all conditions to Company's obligations under the Rights Exchange Agreement (i.e.have been satisfied or waived and that Company will exchange all Rights purchased by Purchaser for Shares and Warrants under the Rights Exchange Agreement; which, April 16in the sole judgment of the Purchaser with respect to each and every matter referred to above and regardless of the circumstances, 2003)including any action or omission by the Purchaser giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment of or payment for the Rights. Any determination by the Purchaser concerning the events described in this Section 12 shall be final and binding upon all parties. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and the Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, the Purchaser in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted part at any time and from time to time.
Appears in 2 contracts
Sources: Rights Exchange Agreement (Medarex Inc), Offer to Purchase (BCC Acquisition I LLC)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, Purchaser shall the Offeror will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares tendered pursuant to the Offer if (i) there shall not have been validly tendered Units tendered, and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser may terminate or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of amend the Offer or may postpone (iii) at any time on or after subject to the date requirements of the Merger Agreement and prior to any Exchange Act for prompt payment for or return of Units) the acceptance for payment of or payment for any Shares pursuant to Units tendered, if at the OfferExpiration Date, as it may be extended, any one or more of the following events shall have occurred (or shall have been determined by the Offeror in its sole judgment to have occurred:) regardless of the circumstances giving rise thereto (including any action or omission to act by the Offeror):
(a) there shall be have been threatened, instituted or be pending by any person or Governmental Authority any suit, action or proceeding by any government or governmental, regulatory or administrative agency or authority or tribunal or any other person, domestic or foreign, or before any court, authority, agency or tribunal that is reasonably likely to prevail (i) challenging challenges or seeking seeks to restrain challenge the acquisition of Units pursuant to the Offer or prohibit otherwise in any manner relates to or affects the making Offer or consummation (ii) in the sole judgment of the Offeror, could materially and adversely affect the business, condition (financial or other), income, operations or prospects of the Partnership, or otherwise materially impair in any way the contemplated future conduct of the business of the Partnership or materially impair the contemplated benefits of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of SignalOfferor;
(b) there shall have been any action threatened, pending or taken, or approval withheld, withdrawn or abrogated or any statute, rule, regulation, judgment, order or injunction shall be threatened, proposed, sought, promulgated, enacted, entered, enforcedamended, promulgated enforced or deemed to be applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under Partnership, by any legislative body, court, authority, agency or tribunal which, in the HSR ActOfferor's sole judgment, that is reasonably likely to result, would or might directly or indirectly, in any of the consequences described in clauses indirectly (i) through make the acceptance for payment of, or payment for, some or all of the Units illegal or otherwise restrict or prohibit consummation of the Offer, (ii) delay or restrict the ability of the Offeror, or render the Offeror unable, to accept for payment or pay for some or all of the Units, (iii) imposes or seeks to impose limitations on the ability of subsection the Offeror to acquire or hold or to exercise full rights of ownership of the Units, (aiv) abovematerially impair the contemplated benefits of the Offer to the Offeror or (v) materially affect the business, condition (financial or other), income, operations or prospects of the Partnership, or otherwise materially impair in any way the contemplated future conduct of the business of the Partnership;
(c) it shall have been publicly disclosed or the Offeror shall have learned that any person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) has acquired or proposes to acquire beneficial ownership of more than 5% of the outstanding Units;
(d) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board any general suspension of Directors of Signal shall have withdrawn, modifiedtrading in, or changed its approval limitation on prices for, securities on any national securities exchange or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaserover-the-counter market, (ii) any significant decline in the Board general level of Directors market prices of Signal shall have recommended any Competing Transactionequity securities in the United States or abroad, (iii) Signal shall any change in the general political, market, economic or financial condition in the United States or abroad that could have violated a material adverse effect on the Partnership's business, condition (financial or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactionsother), income, operations or prospects, (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or any limitation on, or any event which, in the Offeror's sole judgment, might affect, the extension of credit by lending institutions in the United States, (yv) a the commencement of a war, armed hostilities or other international or national crisis directly or international calamity indirectly involving the United States or, or (vi) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, in the Offeror's sole judgment, a material acceleration or worsening thereof;
(e) a tender or acceleration thereofexchange offer with respect to some or all of the Units (other than the Offer) or a merger, acquisition or other business combination proposal for the Partnership, shall have been proposed, announced or made;
(f) there shall have occurred any event or events that have resulted, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which may in the case sole judgment of clauses the Offeror result, in an actual or threatened change in the business, condition (xfinancial or other), income, operations, stock ownership or prospects of the Partnership; or materially impair the contemplated benefits of the Offer;
(yg) or there shall have occurred any decline in the S&P Composite 500 Stock Index by an amount in excess of 15% measured from the close of business on ___________, 1999; or
(zh) prevents Crane from borrowing money the Offeror shall not have received the approval of the Partnership to the assignment to the Offeror of the Units tendered pursuant to its credit facilities the Offer; and, in effect on the date reasonable judgment of the Merger Agreement (i.e.Offeror, April 16, 2003)such event or events make it undesirable or inadvisable to proceed with the Offer or with such acceptance for payment or payment. The Any of the foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effectthe Offeror, in whole or in part, at any time and from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or Purchaser the Offeror 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, right which may be asserted at any time and from time to time. Any determination by the Offeror concerning the events described above will be final and binding on all parties.
Appears in 2 contracts
Sources: Offer to Purchase (Galardi John N), Offer to Purchase (Galardi John N)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, subject to the provisions of the Merger Agreement, Parent and Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for any Shares tendered pursuant payment of or, subject to the restriction referred to above, the payment for, any tendered Shares, and may terminate the Offer if and not accept for payment any tendered Shares if, subsequent to December 31, 1998, (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall or under other applicable antitrust or competition laws has not have expired or been terminated prior to the expiration of the Offer Offer, (ii) the Minimum Tender Condition has not been satisfied, or (iii) at any time on or after August 27, 1998, and before the date time of the Merger Agreement and prior to any acceptance of Shares for payment or payment for any Shares pursuant to the Offer, any one or more of the following events shall have occurredexist:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding by any government or governmental authority or agency, domestic or foreign, before any court or governmental authority or agency, domestic or foreign, that is reasonably likely to prevail has reasonable likelihood of success (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the making of the Offer, the acceptance for payment of or payment for some of or all the Shares by Parent or the consummation by Parent of the Merger, or seeking to obtain material damages in connection with the transactions contemplated by the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to restrain or prohibit or materially limit the Parent's ownership or operation by Signal, Crane (or any that of their its respective subsidiaries or affiliates) of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company and its subsidiaries, taken as a whole, or Crane and/or of Parent and its subsidiaries, taken as a whole, or to compel Parent or any of its subsidiaries or affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company and its subsidiaries, taken as a result whole, or of the Offer or the Merger or Parent and its subsidiaries, taken as a whole, (iii) seeking to impose or confirm material limitations on the ability of Crane Parent or Purchaser any of its subsidiaries or affiliates effectively to acquire or exercise full rights of ownership of the Shares, including, without limitation, the right to vote such any Shares acquired or owned by Parent or any of its subsidiaries or affiliates on all matters properly presented to the stockholders Company's stockholders, or (iv) seeking to require divestiture by Parent or any of Signal;its subsidiaries or affiliates of all or any material portion of the business or assets of the Company and its subsidiaries, taken as a whole; or
(b) there shall be any statute, rule, regulation, judgmentorder, order decree or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken issued by any Governmental Authority or court, other than the application to the Offer government or the Merger of applicable waiting periods under the HSR Act, governmental authority or agency that is reasonably likely to resultlikely, directly or indirectly, to result in any of the consequences described referred to in clauses (i) through (iiiiv) of subsection paragraph (a) above;
(c) there the representations and warranties of the Company set forth in the Merger Agreement shall have occurred not be true and accurate in all material respects as of the date of consummation of the Offer as though made on or as of such date (except for those representations and warranties that address matters only as of a Material Adverse Effect particular date or only with respect to Signala specific period of time which need only be true and accurate as of such date or with respect to such period);
(id) the Board of Directors of Signal Company shall have withdrawnbreached or failed to perform or comply with, modifiedin any material respects, any obligation, agreement or changed its approval or recommendation in respect of covenant under the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any the Board of Directors of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal Company shall have failed withdrawn or modified or changed in a manner adverse to perform in any material respect any of Parent or Purchaser its obligations required to be performed by it under the Merger Agreement at approval or prior to consummation recommendation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement or the Merger or shall be covered by subsection (d) above and not this subsection (g); providedhave recommended an Acquisition Proposal or shall have executed an agreement in principle or definitive agreement relating to an Acquisition Proposal or similar business combination with a person or entity other than Parent, further, that with respect to any breach by Signal Purchaser or their affiliates or the Board of Directors of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there Company shall have occurred, and continued adopted a resolution to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of do any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003)foregoing. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and Parent (or their permitted assignees) and, subject to the Merger Agreement, may be asserted by Crane either of them or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane Parent or Purchaser, by express and specific action to that effect, in whole or in part, part at any time and from time to time in their the sole discretion, in each case, subject to any applicable provisions discretion of the Merger AgreementParent or Purchaser. The failure by Crane Parent or Purchaser at any time to exercise any of the foregoing such rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, and in addition to (and not in limitation of) Purchaser's rights and obligations to extend and/or amend the Offer pursuant to the terms and conditions of the Agreement, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares after termination or withdrawal of the Offer), pay for any Shares tendered Shares, and may delay the acceptance for payment of or, subject to restriction referred to above, the payment for, any tendered Shares, unless at a scheduled Expiration Date of the Offer (as it may be extended pursuant to the Offer if terms of the Agreement), each of the following conditions has been satisfied or, except for the Minimum Condition (i) which may be waived by Purchaser only with the prior written consent of the Company), waived by Parent or Purchaser in its sole discretion: • the Minimum Condition shall have been satisfied; • there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares whichbe no law or order by any governmental entity (whether temporary, when added to Sharespreliminary or permanent in nature) enacted, if anyenforced, previously acquired by Purchaser amended, issued, in effect or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any deemed applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one the effect of which is to, or more of the following events shall have occurred:
(a) there shall would reasonably be instituted expected to, directly or be pending by any person or Governmental Authority any suitindirectly, action or proceeding that is reasonably likely to prevail (i) challenging make illegal or seeking to restrain otherwise prevent, prohibit or prohibit impose adverse conditions on the making or consummation of the Offer Offer, or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to restrict, prohibit or materially limit in any material respect the ownership or operation by Signal, Crane Purchaser of all or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company, or Crane and/or its subsidiaries as a result of the Offer impose any material limitation, restriction or the Merger or (iii) seeking to impose material limitations prohibition on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR ActCompany to conduct its business or own such assets, in each case, that is reasonably likely to result, directly or indirectly, in any would have a material and adverse impact on the operation of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger business or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003)Company. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances (other than actions or inactions by Parent or Purchaser in breach of the Agreement) giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effectcondition, in whole or in part, part at any applicable time and or from time to time in its sole discretion prior to the expiration of the Offer, and all conditions (except for the Minimum Condition, which may be waived by Purchaser only with the prior written consent of the Company) may be waived by Purchaser, in their sole discretion, in each case, subject to whole or in part at any applicable provisions of the Merger Agreement. The failure by Crane time or 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, which may be asserted at any time and from time to time, in each case subject to the terms and conditions of the Agreement and the applicable rules and regulations of the SEC.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 15, capitalized terms used but not defined herein will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions of the Offer, Purchaser shall we will not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant to Shares, and may delay the acceptance for payment of or the payment for any tendered Shares, and under certain circumstances, terminate or amend the Offer if as to any Shares not then paid for, if: (i) there shall the Minimum Condition has not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), satisfied; (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall has not have expired or been terminated prior to the expiration of the Offer terminated; or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the OfferExpiration Date, any one or more of the following events shall have occurred:conditions exist (collectively, the "Offer Conditions"):
(a) there shall be instituted is threatened or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) seeking to prohibit or impose any material limitations on Wiley's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a material portion of their or the Company's businesses or assets, (ii) seeking to compel Wiley or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company or Wiley and their respective subsidiaries, in each case taken as a whole, (iii) challenging the acquisition by Wiley or Purchaser of any Shares pursuant to the Offer or the Merger, (iv) seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits the performance of the MergerTransactions, (iiv) seeking to prohibit or materially limit obtain from the ownership or operation by SignalCompany any damages that would be reasonably likely to have a Material Adverse Effect on the Company, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iiivi) seeking to impose material limitations on the ability of Crane Purchaser, or rendering Purchaser unable, to acquire accept for payment, pay for or purchase some or all of the pursuant to the Offer and the Merger, (vii) seeking to impose material limitations on the ability of Purchaser or Wiley effectively to exercise full rights of ownership of Shares, the Shares including, without limitation, the right to vote such the Shares purchased by it on all matters properly presented to the stockholders Company's stockholders, or (viii) which would be reasonably likely to have a Material Adverse Effect on Wiley or Purchaser; provided that any such suit, action or proceeding involving a non-governmental entity has a reasonable likelihood of Signal;success on the merits; or
(b) there has been any statute, rule, regulation, judgmentinjunction, order or injunction shall be decree enacted, entered, enforced, promulgated promulgated, issued or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, by any governmental entity that is reasonably likely to result, directly or indirectly, results in any of the consequences described in clauses (i) through (iii) of subsection (aparagraph 15(a) above;; or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have has been terminated in accordance with its terms;terms or any event has occurred which gives Wiley or Purchaser the right to terminate the Merger Agreement or not consummate the Merger; or
(fd) any representation or warranty of the representations and warranties of Signal set forth Company contained in the Merger Agreement shall is not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case all respects as of such datethe date of consummation of the Offer (disregarding qualifications therein relating to materiality); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as and the failure of all such representations and warranties so representation or warranty to be true and correct would not reasonably be expected to have a Material Adverse Effect on Signal the Company, provided that such breach is incapable of being cured or prevent has not been cured prior to the Expiration Date (or materially delay such later date upon which the consummation of Offer will expire in accordance with the Offer;Merger Agreement); or
(ge) Signal shall have the Company has failed to perform in any material respect or comply with any of its obligations required obligations, covenants or agreements to be performed or complied with by it under the Merger Agreement at or prior Agreement, and such failure would reasonably be expected to consummation of have a Material Adverse Effect on the OfferCompany, which provided that such failure to perform or comply with is incapable of being cured or, with respect to a failure that is curable, or has not been cured within twenty prior to the Expiration Date (20) business days after or such later date upon which the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that Offer will expire in accordance with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach); or
(hf) there shall have occurred, has occurred and continued to existis continuing (i) any general suspension of trading in or limitation on prices for securities on any national securities exchange or in the over-the-counter market in the United States (other than a shortening of trading hours or any coordinated trading halt triggered solely as a result of a specified increase or decrease in a market index), (xii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates whether or not mandatory, (yiii) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on governmental entity on, or other event that materially and adversely affects, the extension of credit by banks or other lending institutions, (iv) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States, (v) any change in the general financial bank or capital market conditions which has a material adverse effect on the ability of financial institutions in the United States to extend credit or syndicate loans, or (vi) in the case of clauses any of the foregoing existing at the time of the execution of the Merger Agreement, a material acceleration or worsening thereof; or
(x)g) the Company Board or any committee thereof (i) has withdrawn or modified in a manner adverse to Wiley or Purchaser (including by amendment of the Schedule 14D-9) its approval or recommendation of the Offer, the Merger or the Merger Agreement or recommended or approved any Acquisition Proposal, (yii) upon request of Purchaser, has failed to reaffirm its approval recommendation of the Offer, the Merger Agreement, or the Merger; or (ziii) prevents Crane from borrowing money pursuant has resolved to do any of the foregoing; or
(h) a Material Adverse Effect on the Company has occurred after August 12, 2001; or
(i) Wiley and the Company have agreed that Purchaser will terminate the Offer or postpone the acceptance for payment of or payment for Shares under the Offer; or
(j) the consent of the lenders under the Company's Credit Agreement with respect to ▇▇▇▇▇'▇ pay-off of the credit facility of the Company (as discussed in Section 12 above) has not been obtained as of the close of business on the day prior to the date the Offer is consummated; or
(k) the consolidated funded debt (including all amounts borrowed under the Company's Credit Agreement, the Subordinated Loan Agreement, any agreement for the factoring of the Company's accounts receivable, and any other outstanding long-term, short-term or subordinated consolidated debt) of the Company and its credit facilities Subsidiaries, computed in effect accordance with U.S. generally accepted accounting principles applied on a consistent basis and in accordance with the Company's past practice, is greater than $92,500,000 in the aggregate as of the close of business on the date the Offer is consummated; which in the good faith judgment of the Merger Agreement (i.e.Wiley or Purchaser, April 16in any such case, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such condition, and provided that Purchaser and Wiley have performed all of their respective obligations to use their commercially reasonable efforts to do all things necessary to consummate the Offer and the Merger, makes it inadvisable to proceed with the Offer or the acceptance for payment or payment for the Company Common Stock. A public announcement may be made of a material change in, or waiver of, such conditions and may be waived by Crane or Purchaser, by express and specific action to that effectthe Offer may, in whole or certain circumstances, be extended in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of connection with any such right and each such right shall be deemed an ongoing right, which may be asserted at any time and from time to timechange or waiver. See Section 1.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend and amend the Offer at any time in its sole discretion (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restriction referred to above, the payment for, any Shares tendered pursuant to Shares, and may terminate the Offer if (i) there shall the Minimum Condition has not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)satisfied, (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall has not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after March 1, 1999 and before the date time of the Merger Agreement and prior to any acceptance of Shares for payment or payment for any Shares pursuant to the Offer, any one or more of the following events shall have occurredoccur:
(a) there shall be instituted or be pending by have been any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging taken or seeking to restrain instituted and pending, or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enactedpromulgated, entered, enforced, promulgated enacted, issued or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken taken, proposed or threatened, by any Governmental Authority domestic or courtforeign federal or state governmental regulatory or administrative agency or authority or court or legislative body or commission which does or could reasonably be expected to (l) prohibit or impose any material limitations on, other than Parent's or Purchaser's ownership or operation of all or a material portion of the application Company's or its Subsidiaries' businesses or assets compelling Parent, Purchaser or any of their affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company or any of its Subsidiaries or Parent, or any of its affiliates, as a result of the transactions contemplated by the Offer or the Merger Agreement, (2) prohibit or make illegal the acceptance for payment, payment for or purchase of applicable waiting periods under Shares or the HSR Actconsummation of the Offer or the Merger, (3) result in a material delay in or restrict the ability of Purchaser, or render Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares, or (4) impose material limitations on the ability of Purchaser or Parent effectively to acquire or exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders, provided that Parent shall have used all reasonable efforts to cause any such judgment, order or injunction to be vacated or lifted; provided further that the condition specified in this paragraph (a) shall not be deemed to exist by reason of any court proceeding pending on the date hereof and known to Purchaser or Parent, unless in the reasonable judgement of Purchaser there is reasonably likely any material adverse development in any such proceeding after the date hereof, or before the date hereof if not known to resultPurchaser or Parent on the date hereof, directly or indirectly, which would result in any of the consequences described referred to in clauses (i1) through (iii) of subsection (a4) above;
(cb) there the representations and warranties of the Company set forth in the Merger Agreement shall not be true and correct in any respect as of the date of consummation of the Offer as though made on or as of such date or the Company shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, breached or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached failed in any material respect to perform or comply with any of its obligations under Section 6.05 of obligation, agreement or covenant required by the Merger Agreement (regardingto be performed or complied with by it except, among other thingsin each case, solicitation those representations and warranties that address matters only as of Competing Transactions), or (iv) the Board a particular date which are true and correct as of Directors of Signal shall have resolved to take any of the foregoing actionssuch date;
(ec) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(fi) any the Company Board shall have withdrawn, or modified or changed in a manner adverse to Parent or Purchaser (including by amendment of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warrantySchedule 14D-9) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation recommendation of the Offer, which failure the Merger Agreement, or the Merger, or recommended another proposal or offer, or shall have resolved to perform is incapable do any of being cured orthe foregoing or (ii) any such corporation, partnership, person or other entity or group shall have entered into a definitive agreement or an agreement in principle with the Company with respect to a failure that is curabletender offer or exchange offer for any Shares or a merger, has not been cured within twenty (20) consolidation or other business days after combination with or involving the giving Company or any of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; orits subsidiaries;
(he) there shall have occurredoccurred any fact that had or could reasonably be expected to result in a Company MAE;
(f) there shall have occurred (i) any general suspension of trading in, and continued to existor limitation on prices for, securities on any national securities exchange or in the over-the-counter market in the United States, (xii) a decline of at least 25% in either the Dow ▇▇▇▇▇ Average of Industrial Stocks or the Standard & Poor's 500 index from the date hereof, (iii) any material adverse change or any existing or threatened condition, event or development involving a prospective material adverse change in United States or other material international currency exchange rates or a suspension of, or limitation on, the markets therefor, (iv) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yv) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on government or governmental, administrative or regulatory authority or agency, domestic or foreign, on, or any other event that, in the reasonable judgment of Purchaser, could reasonably be expected to materially adversely affect the extension of credit by banks or other lending institutions, which (vi) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States (except for any such event involving Iraq or Bosnia) or materially adversely affecting (or materially delaying) the consummation of the Offer or (vii) in the case of clauses any of the foregoing existing at the time of commencement of the Offer, a material acceleration or worsening thereof; or
(x)g) any applicable waiting periods under any material foreign statutes or regulations shall not have expired or been terminated, or any material approval, permit, authorization or consent of any domestic or foreign governmental, administrative, or regulatory agency (yfederal, state, local, provincial or otherwise) shall not have been obtained on terms satisfactory to Parent in its reasonable discretion; which in the reasonable judgment of Purchaser with respect to each and every matter referred to above and regardless of the circumstances (including any action or (z) prevents Crane from borrowing money pursuant to inaction by Purchaser or any of its credit facilities in effect on the date affiliates other than a breach of the Merger Agreement (i.e.Agreement) giving rise to any such condition, April 16, 2003)makes it inadvisable to proceed with the Offer or with such acceptance for payment of or payment for Shares or to proceed with the Merger. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions Parent and may be waived by Crane Parent or Purchaser, by express and specific action to that effect, in whole or in part, part at any time and from time to time in their the sole discretion, in each case, subject to any applicable provisions discretion of the Merger AgreementParent or Purchaser. The failure by Crane or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances, and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Offer to Purchase (L 3 Communications Holdings Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the OfferOffer except as otherwise provided in Section 1, Purchaser the Fund shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares, may postpone the acceptance for payment of, or payment for, tendered Shares, and may, in its sole discretion, terminate or amend the Offer as to any Shares not then paid for if (i) more than 495,569.509 Shares are tendered and not withdrawn as of the Expiration Date, or (ii) in the judgment of the Investment Adviser, the assets of the Fund are not sufficiently liquid to fund the purchase of the Shares in the Offer, or (iii) the Fund would not be able to liquidate portfolio securities in a manner that is orderly and consistent with the Fund's investment objectives and policies in order to purchase Shares tendered pursuant to the Offer if Offer, or (iiv) there shall not have been validly tendered and not withdrawn at or prior to the expiration time of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or payment for any of their respective affiliates, represents a majority of the then total issued and outstanding such Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that whether or not any Shares have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or therefore been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance accepted for payment or payment paid for any Shares pursuant to the Offer), any one or more of the following events shall have occurredoccur:
(a) there shall be threatened, instituted or be pending any action, proceeding or application before any court or governmental authority or other regulatory or administrative agency or commission, domestic or foreign, by any person government or Governmental Authority governmental authority or other regulatory or administrative agency or commission, domestic or foreign, or by any suitother person, action domestic or proceeding that is reasonably likely to prevail (i) foreign challenging the acquisition by the Fund of the Shares or seeking to restrain restrain, delay or prohibit the making or consummation of the Offer Offer, or the Merger acceptance for payment, purchase of, or to substantially deprive Crane of any of its anticipated benefits payment for, some or all of the MergerShares or resulting in a delay in, (ii) seeking to prohibit or materially limit the ownership or operation by Signalrestricting, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane the Fund, or Purchaser rendering the Fund unable, to acquire accept for payment, purchase or exercise full rights pay for some or all of ownership of the Shares, including, without limitation, or otherwise directly or indirectly relating in any manner to or affecting the right to vote such Shares on all matters properly presented to the stockholders of Signal;Offer; or
(b) any statute, rule, regulation, judgment, regulation or order or injunction shall be sought, proposed, enacted, promulgated, entered, enforced, promulgated enforced or deemed or become applicable to the Offer and/or the Merger, or any other action shall be taken have been taken, proposed or threatened, by any Governmental Authority government, governmental authority or other regulatory or administrative agency or commission or court, or any other than person, domestic or foreign, that, in the application to sole judgment of the Offer or the Merger of applicable waiting periods under the HSR ActFund, that is reasonably likely to resultmight, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iii) of subsection paragraph (a) above;; or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modifiedany general suspension of, or changed its approval limitation on times or recommendation prices for, trading in respect of securities on any national securities exchange or in the Merger Agreement, over-the Merger counter market or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaserany securities exchange in Brazil, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates or Brazil, (yiii) a commencement of a war, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States oror Brazil, (iv) any limitation (whether or not mandatory) by any governmental authority on, or any other event which, in the sole judgment of the Fund, might affect, the extension of credit by banks or other lending institutions or foreign currency transactions by such institutions or (v) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, in the sole judgment of the Fund, a material acceleration or worsening thereof; or
(d) any change (or acceleration thereofany condition, event or (zdevelopment involving a prospective change) shall have occurred or be threatened in the general economic, financial, currency exchange or market conditions in the United States, in Brazil or abroad that, in the sole judgment of the Fund, has or may have a material limitation adverse effect upon the value of the assets of the Fund; or
(whether e) any other event shall have occurred or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, condition shall exist which in the case judgment of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in the Fund would have a material adverse effect on the date Fund, its assets or its shareholders or any such event will occur or such condition shall exist if the Fund were to purchase Shares in the Offer which in the sole judgment of the Merger Agreement Fund with respect to each and every matter referred to above and regardless of the circum stances (i.e.including any action or inaction by the Fund) giving rise to any such condition, April 16, 2003)makes it inadvisable to proceed with the Offer or with such acceptance for payment or payment. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser the Fund and may be asserted by Crane or Purchaser the Fund regardless of the circumstances circum stances (including any action or inaction by the Fund) giving rise to any such conditions and or may be waived by Crane or Purchaser, by express and specific action to that effect, the Fund in whole or in part, part at any time and from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or Purchaser the Fund 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, right which may be asserted at any time and from time to time. Any determination by the Fund concerning the events described in this Section shall be final and binding on all parties. A public announcement shall be made of a material change in, or waiver of, such conditions, and the Offer may, in certain circumstances, be extended in connection with any such change or waiver.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after expiration or termination of the Offer), to pay for any Shares, and (subject to any such rules or regulations) may postpone the acceptance for payment of or payment for any Shares tendered pursuant to tendered, and may amend or terminate (if, when and as permitted by the Offer if Merger Agreement) the Offer, (ia) unless the following conditions have been satisfied: (1) there shall not have been validly tendered and not withdrawn prior to before the expiration of the Offer that Expiration Date a number of Shares which, when added to Sharestogether with all Shares already owned, if anydirectly or indirectly, previously acquired by Purchaser Parent or Crane or any of their respective affiliatesPurchaser, represents a majority at least 51% of the total voting power of the outstanding securities of the Company entitled to vote in the election of directors or in a merger, calculated on a fully diluted basis, on the date of purchase ("on a fully diluted basis" having the following meaning, as of any date: the number of Shares outstanding, together with the number of Shares the Company is then total issued required to issue pursuant to obligations outstanding at that date under employee or non-employee director stock option or other benefit plans or otherwise) and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii2) any applicable waiting period (and any extension(s) thereof) periods under the HSR Act shall not have expired or been terminated prior to before the expiration of the Offer Expiration Date, or (iiib) if at any time on or after May 4, 2000 and before the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the OfferExpiration Date, any one or more of the following events shall have occurred:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging any Governmental Entity shall have enacted, issued, promulgated, enforced or seeking entered any statute, rule, regulation, executive order, decree or temporary or preliminary injunction that shall not have been lifted prior to restrain the Expiration Date or prohibit permanent injunction or other order (other than the making or consummation application of the waiting period provisions of the HSR Act to the Offer or the Merger) which is in effect and which (A) restricts, prevents or prohibits consummation of the transactions contemplated by the Merger Agreement, including the Offer or to substantially deprive Crane of any of its anticipated benefits of the Merger, (iiB) seeking to prohibit prohibits or limits materially limit the ownership or operation by Signal, Crane Parent or any of their respective its subsidiaries of a material all or any portion of the business, operations business or assets of Signal the Company and its subsidiaries, taken as a whole, or Crane and/or its subsidiaries compels the Company, Parent or to compel Signal or Crane any subsidiary of Parent to dispose of or hold separate all or any material portion of the business or assets of Signal or Crane and/or the Company and its subsidiaries subsidiaries, taken as a whole, as a result of the completion of the Offer or the Merger Merger, or (iiiC) seeking to impose material imposes limitations on the ability of Crane Parent, Purchaser, or Purchaser any subsidiary of Parent to acquire or exercise effectively full rights of ownership of any Shares, including, including without limitation, limitation the right to vote such any Shares acquired by Purchaser pursuant to the Offer or otherwise on all matters properly presented to the stockholders Shareholders, including without limitation the approval of Signalthe Merger Agreement and the transactions contemplated thereby;
(bii) any statute, rule, regulation, judgment, order or injunction there shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken instituted by any Governmental Authority Entity and pending any action or courtproceeding before any United States or foreign court or governmental entity or authority of competent jurisdiction seeking any order, other than the application to the Offer decree or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, injunction having any effect set forth in any of the consequences described in clauses clause (i) through (iii) of subsection (a) above;
(ciii) the representations and warranties of the Company contained in the Merger Agreement that are qualified as to Company Material Adverse Effect (as defined in the Merger Agreement) shall not be true and correct in any respect, and the representations and warranties of the Company contained in the Merger Agreement that are not so qualified shall not be true and correct in any respect and which untruth or incorrectness, individually or in the aggregate, are reasonably likely to have a Company Material Adverse Effect or materially impair the ability of the Company to consummate the transactions contemplated by the Merger Agreement as of the Expiration Date as though made on and as of such date (except for representations and warranties made as of a specified date, unless they shall not be true and correct as of the specified date);
(iv) the Company shall not have complied in all material respects with its covenants under the Merger Agreement and such failure continues until 15 calendar days after actual receipt by it of written notice from Parent setting forth in reasonable detail the nature of such failure;
(v) there shall have occurred a any Company Material Adverse Effect with respect to SignalEffect, or any development that would have a Company Material Adverse Effect, since May 4, 2000;
(ivi) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(fvii) any of the representations and warranties of Signal set forth in Company Board or the Merger Agreement Special Committee shall not be true and correct have (without regard to any materiality qualifications A) withdrawn or references to Material Adverse Effect contained modified or changed, in any specific representation manner adverse to Parent or warranty) as if such representations and warranties were made at the time of any such determinationPurchaser, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal its approval or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation recommendation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of or the Merger Agreement, Signal shall be afforded up (B) accepted, approved or recommended any Alternative Transaction, or (C) resolved or publicly disclosed any intention to thirty (30) business days to cure such breachdo any of the foregoing; or
(hviii) there the Federal Reserve Board or any other federal governmental authority shall have occurred, and continued to exist, (x) declared a declaration of a general banking moratorium or any general suspension or material limitation for five consecutive business days on the extension of credit or in respect of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which institutions in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003)United States. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Purchaser and Purchaser its affiliates and may be asserted by Crane Purchaser, or Purchaser Parent on behalf of Purchaser, regardless of the circumstances (including without limitation any action or inaction by Purchaser or any of its affiliates other than a breach by Parent or Purchaser of the Merger Agreement) giving rise to any such conditions and condition or may be waived by Crane Parent, or Parent on behalf of Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their its sole discretion, except as otherwise provided in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane Purchaser, or Purchaser Parent on behalf of Purchaser, at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right and each such right shall will be deemed an ongoing right, which right and may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend and amend the Offer at any time in its sole discretion (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restriction referred to above, the payment for, any validly tendered Shares unless the Minimum Condition shall have been satisfied. Furthermore, notwithstanding any other provisions of the Offer, Purchaser shall not be required to accept for payment or pay for any validly tendered Shares tendered pursuant to if, at the Offer if scheduled Expiration Date (i) there shall any applicable waiting periods under the HSR Act and any comparable provisions under any applicable pre-merger notification laws or regulations of foreign jurisdictions have not have been validly tendered and not withdrawn expired or terminated prior to termination of the Offer, or (ii) immediately prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more of the following events conditions shall exist (capitalized terms used herein and not otherwise defined have occurred:the meanings ascribed to them in the Merger Agreement):
(a) there shall be have been instituted or be pending pending, by any person Governmental Entity or any other Person or threatened by a Governmental Authority Entity, any suit, action or proceeding that is reasonably likely to prevail against Parent, Purchaser or the Company challenging or seeking (i) challenging or seeking to make illegal, restrain or prohibit or make materially more costly the making or consummation of the Offer Offer, the acceptance for payment of, or payment for, any Shares by Parent or Purchaser, or the Merger or to substantially deprive Crane of any of its anticipated benefits consummation of the Merger, (ii) seeking to prohibit or limit materially limit the ownership or operation by Signalthe Company, Crane Parent, Purchaser or any of their respective subsidiaries affiliates of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company, Parent or Crane and/or its subsidiaries as a result any of their affiliates, or compel the Offer Company, Parent or the Merger or any of their affiliates to effect an Action of Divestiture, (iii) seeking to impose material or confirm limitations on the ability of Crane Parent, Purchaser or Purchaser any other affiliate of Parent to acquire or exercise full rights of ownership of any Shares, including, without limitation, the right to vote such any Shares acquired by Purchaser pursuant to the Offer or otherwise on all matters properly presented to the stockholders Company's shareholders, including, without limitation, the approval and adoption of Signalthe Merger Agreement and the transactions contemplated by the Merger Agreement, (iv) to require divestiture by Parent or Purchaser of any Shares; or (v) which otherwise seeks damages or relief which could reasonably be expected to have a Material Adverse Effect on Parent or the Company;
(b) there shall have been entered, enforced, enacted or deemed applicable to (A) Parent, Purchaser or the Company or (B) the Merger Agreement, the Offer or the Merger, in any case, any statute, rule, regulation, legislation, judgment, order order, injunction or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, decree by any Governmental Entity or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, Person that is reasonably likely to resultto, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iiiv) of subsection paragraph (a) above;
(c) there a Company Triggering Event shall have occurred occurred;
(d) the representations and warranties of the Company set forth in the Merger Agreement shall not be true and correct (without giving effect to any limitation as to "materiality" or "Material Adverse Effect" set forth therein) at and as of the date of the Merger Agreement and the expiration of the Offer (except to the extent that such representations and warranties speak as of a specific date, in which case as of such specific date), except where the failure to be so true and correct, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect with respect to Signal;
(i) on the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actionsCompany;
(e) Signal, Purchaser and Crane the Company shall have agreed in writing materially breached any covenant, obligation or other agreement to terminate be performed or complied by it under the Offer, or Merger Agreement;
(f) the Merger Agreement shall have been terminated in accordance with its terms;
(fg) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there following shall have occurred: (1) any general suspension of trading in, and continued or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq for a period in excess of 24 hours (excluding suspensions or limitations resulting solely from physical damage or interference with such exchanges not related to existmarket conditions), (x2) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates (whether or not mandatory), (y3) a commencement or material worsening of a war, armed hostilities or other national or international calamity directly or indirectly involving the United States oror any terrorist activities which materially and adversely affects Parent, Purchaser or the Company or the ability of financial institutions in the case of United States to extend credit or syndicate loans, (4) any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority Entity on the extension of credit generally by banks or other lending financial institutions, or (5) a change in general financial, bank or capital market conditions which materially and adversely affects the ability of financial institutions in the case United States to extend credit or syndicate loans;
(h) Purchaser and the Company shall have agreed that Purchaser shall terminate the Offer or postpone the acceptance for payment of clauses or payment for Shares thereunder; or
(x)i) any party to the Shareholder Tender and Voting Agreements other than Purchaser and Parent shall have breached or failed to perform any of its covenants or agreements under such agreements or breached any of its representations and warranties in any of such agreements, (y) or (z) prevents Crane from borrowing money pursuant any of such agreements shall not be valid, binding and enforceable, except for such breaches or failures to its credit facilities in effect on be valid, binding and enforceable that do not materially and adversely affect the date of benefits expected to be received by Parent and Purchaser under the Merger Agreement (i.e., April 16, 2003)or the Shareholder Tender and Voting Agreements. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Purchaser and Purchaser Parent and may be asserted by Crane Purchaser or Purchaser Parent regardless of the circumstances giving rise to any such conditions and condition or may be waived by Crane Purchaser or Purchaser, by express and specific action to that effect, Parent in whole or in part, part at any time and from time to time in their sole and absolute discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane Parent or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right; the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances; and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Offer to Purchase (Paravant Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after expiration or termination of the Offer), to pay for any Shares tendered tendered, and (subject to any such rules or regulations) may postpone the acceptance for payment or payment for any Shares tendered, and may amend or terminate (if, when and as permitted by the Merger Agreement) the Offer (whether or not any Shares have theretofore been purchased or paid for pursuant to the Offer if Offer) (1) unless the following conditions have been satisfied: (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that Expiration Date a number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, which represents at least a majority of the total voting power of the outstanding securities of the Company entitled to vote in the election of directors or in a merger ("Voting Securities"), calculated on a fully diluted basis, on the date of purchase ("on a fully diluted basis" having the following meaning, as of any date: the number of Shares outstanding, together with the number of Shares the Company is then total issued and required to issue pursuant to obligations outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock at that have a per share exercise price of less than $13.25date under employee stock option or other benefit plans or otherwise), (ii) any applicable waiting period (and any extension(s) thereof) periods under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or Offer, and (iii) the OCC shall have consented in writing to, or stated in writing that it would not disapprove of, the Offer and the Merger or all applicable filing, approval or waiting periods or extensions thereof under the CIBC Act shall have expired without the OCC providing notice of objection to the Offer or the Merger (the "OCC Condition"), or (2) if at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to before the OfferExpiration Date, any one or more of the following events shall have occurred:
: (i) any governmental entity or authority or any court shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, temporary or preliminary injunction that shall not have been lifted prior to the Expiration Date or permanent injunction or other order which is in effect and which (a) there shall be instituted restricts, prevents or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or prohibits consummation of the transactions contemplated by the Merger Agreement, including the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (iib) seeking to prohibit prohibits, limits or materially limit otherwise adversely affects the ownership or operation by Signal, Crane Parent or any of their respective its subsidiaries of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company and its subsidiaries or Crane and/or compels the Company, Parent or any of their subsidiaries to dispose of or hold separate all or any portion of the business or assets of the Company and its subsidiaries as a result of the completion of the Offer or the Merger Merger, or (iiic) seeking to impose material imposes limitations on the ability of Crane Parent, Purchaser or Purchaser any other subsidiary of Parent to acquire or exercise effectively full rights of ownership of any Shares, including, including without limitation, limitation the right to vote such any Shares acquired by Purchaser pursuant to the Offer or otherwise on all matters properly presented to the stockholders of Signal;
(b) any statuteCompany's Shareholders, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to including without limitation the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 and adoption of the Merger Agreement and the transactions contemplated thereby; (regardingii) there shall be instituted or pending any action or proceeding before any United States or foreign court or governmental entity or authority by any United States or foreign governmental entity or authority seeking any order, among other things, solicitation of Competing Transactions), decree or (iv) the Board of Directors of Signal shall have resolved to take injunction having any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal effect set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses paragraph (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.above; 32
Appears in 1 contract
Sources: Offer to Purchase (Federated Department Stores Inc /De/)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and subject to any such rules or regulations, may delay the acceptance for payment of any tendered Shares and (except as provided in the Merger Agreement) amend or terminate the Offer (whether or not any Shares tendered have been theretofore purchased or paid for pursuant to the Offer if Offer) (i) unless the following conditions shall have been satisfied:
(a) there shall not have been be validly tendered and not withdrawn prior to the expiration of the Offer that Expiration Date a number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, which represents at least a majority of the then total issued voting power of the outstanding securities of the Company entitled to vote in the election of directors or in a merger ("Voting Securities") calculated on a fully diluted basis (the "Minimum Condition") ("on a fully diluted basis" having the following meaning as of any date: the number of Voting Securities outstanding, together with Voting Securities issuable pursuant to obligations outstanding at that date under employee stock option or other benefit plans or otherwise) and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (iib) any applicable waiting period (and any extension(s) thereof) under the HSR Act and similar German laws (see Section 15) shall not have expired or been terminated prior to the expiration of the Offer Expiration Date or (iiiii) if at any time on or after the date of the Merger Agreement and prior to before the time of payment for any acceptance such Shares (whether or not any Shares have theretofore been accepted for payment or payment paid for any Shares pursuant to the Offer), any one or more of the following events shall have occurred:
occur and be continuing: (a) there shall be instituted in effect an injunction or be pending other order, decree, judgment or ruling by any person or a Governmental Authority of competent jurisdiction or a law shall have been promulgated, enacted, taken or threatened by a Governmental Authority of competent jurisdiction which in any suit, action such case (1) restrains or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit prohibits the making or consummation of the Offer or Offer, the consummation of the Merger or to substantially deprive Crane of any of its anticipated benefits of the Mergertransactions contemplated by the Stockholders Agreement, (ii2) seeking to prohibit prohibits or materially limit restricts the ownership or operation by Signal, Crane Parent (or any of their respective subsidiaries its affiliates or subsidiaries) of a material any portion of its or the business, operations Company's business or assets which is material to the business of Signal all such entities taken as a whole, or Crane and/or compels Parent (or any of its subsidiaries affiliates or to compel Signal or Crane subsidiaries) to dispose of or hold separate any material portion of its or the Company's business or assets which is material to the business of Signal or Crane and/or its subsidiaries all such entities taken as a result of the Offer or the Merger or whole, (iii3) seeking to impose imposes material limitations on the ability of Crane or Purchaser effectively to acquire or to hold or to exercise full rights of ownership of the Shares, including, without limitation, the right to vote such the Shares purchased by Purchaser on all matters properly presented to the stockholders Stockholders, or (4) imposes any material limitations on the ability of Signal;
Parent or any of its affiliates or subsidiaries effectively to control in any material respect the business and operations of the Company; (b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority shall have instituted any action, suit or court, other than the application proceeding seeking any relief or remedy referred to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection paragraph (a) above;
(c) there shall have occurred or material damages as a Material Adverse Effect with respect to Signal;
(i) the Board result of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect any of the Merger Agreement, the Merger Stockholders Agreement or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, any transactions contemplated thereby; (iic) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated by the Company or Parent in accordance with its terms;
(f) terms or any of event shall have occurred which gives Parent or Purchaser the representations and warranties of Signal set forth in right to terminate the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as consummate the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to SignalMerger; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurredoccurred any event that, individually or when considered together with any other matter, has had or is reasonably likely in the future to have a material adverse effect on the business, assets, condition (financial or otherwise), liabilities or results of operations of the Company and continued to existthe Company Subsidiaries taken as a whole (a "Company Material Adverse Effect"); (e) there shall have occurred (1) any general suspension of, or limitation on prices (other than suspensions or limitations triggered on the New York Stock Exchange, Inc. by price fluctuations on a trading day) for, trading in securities on any national securities exchange or the over-the-counter market, (x2) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y3) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on government or governmental, administrative or regulatory authority or agency, domestic or foreign, on, the extension of credit by banks or other lending 33 36 institutions, which (4) a commencement of a war or armed hostilities or other national calamity directly involving the United States and Parent shall have determined that there is a reasonable likelihood that such event may be of material adverse significance to it or the Company, (5) any decline of at least 20% in the case Dow Jone▇ ▇▇▇rage of clauses (x), (y) Industrial Stocks or (z) prevents Crane 20% in the Standard & Poor's 500 Index from borrowing money pursuant to its credit facilities in effect on the levels thereof as of the last trading day immediately preceding the date of the Merger Agreement or (i.e.6) in the case of any of the foregoing existing at the time of the execution of the Merger Agreement, April 16, 2003). The foregoing conditions a material acceleration or worsening thereof; (including those f) it shall have been publicly disclosed or Purchaser shall have otherwise learned that beneficial ownership (determined for the purposes of this paragraph as set forth in clauses Rule 13d-3 promulgated under the Exchange Act) of more than 25% of the outstanding Shares has been acquired by any person (including the Company, any of the Company Subsidiaries or affiliates thereof) or group (as defined in Section 13 (d) (3) of the Exchange Act), other than Purchaser or any of its affiliates; (g) the Company or any of its officers, directors or financial or legal advisors shall have, directly or indirectly, (1) solicited, initiated, encouraged (including by way of furnishing information) or taken any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constituted, or may reasonably be expected to lead to, any Takeover Proposal or (2) participated in any discussions or negotiations regarding any Takeover Proposal regardless of whether or not any of the foregoing actions are permitted by the Merger Agreement; (h) any of the representations and warranties of the Company set forth in the Merger Agreement that are qualified by reference to materiality or a Company Material Adverse Effect shall not be true and correct, or any such representations and warranties that are not so qualified shall not be true and correct in any respect that is reasonably likely to have a Company Material Adverse Effect, in each case as if such representations and warranties were made at the time of such determination; (i) and (ii) the Company shall have failed to perform in any material respect any material obligation or to comply in any material respect with any material agreement or covenant of the initial paragraph Company to be performed or complied with by it under the Merger Agreement; or (j) Parent and the Company shall have agreed that Parent shall amend the Offer to terminate the Offer or postpone the payment for Shares pursuant thereto; which, in the judgment of this Section 14) are for the sole benefit of Crane Parent with respect to each and Purchaser every matter referred to above and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer or with such acceptance for payment of or payment for Shares or to proceed with the Merger. The foregoing conditions are for the sole benefit of Parent and may be asserted by Parent regardless of the circumstances giving rise to any such condition (except for any action or inaction by Parent or any of its affiliates constituting a breach of the Merger Agreement) or (other than the Minimum Condition) may be waived by Crane or Purchaser, by express and specific action to that effect, Parent in whole or in part, part at any time and from time to time in their its sole discretion, in each case, discretion (subject to any applicable provisions the terms of the Merger Agreement). The failure by Crane or Purchaser Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time. 15.
Appears in 1 contract
Sources: Acquisition Agreement (TRW Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions term of the OfferOffer or the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Common Shares or Preferred Shares after the termination or withdrawal of the Offer), to pay for any Common Shares or Preferred Shares tendered pursuant to the Offer if unless, (i) there 29 shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that such number of Common Shares whichand Preferred Shares that, when added to Shares, if any, previously acquired Preferred Shares beneficially owned by Purchaser or Crane or any of their respective affiliates, represents a majority EastGroup on the date of the then Merger Agreement, will constitute two-thirds of the total issued and outstanding Shares (assuming, for this purpose, the exercise number of all options to purchase shares of Common Stock that have the capital stock of the Company entitled to vote on a per share exercise price of less than $13.25merger under the Company's Charter and the GBCL (the "Minimum Condition"), ; and (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act applicable to the purchase of Common Shares and Preferred Shares pursuant to the Offer shall not have expired or been terminated prior to (the expiration "HSR Condition"). Furthermore, notwithstanding any other term of the Offer or (iii) the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject as aforesaid, to pay for any Common Shares and Preferred Shares not theretofore accepted for payment or paid for, and may terminate the Offer if, at any time on or after the date of the Merger Agreement and prior to any before the acceptance of such shares for payment or the payment for any Shares pursuant to the Offertherefor, any one or more of the following events shall have occurred:
conditions exist (aother than as a result of any action or inaction of EastGroup or any of its subsidiaries which constitutes a breach of the Merger Agreement): (i) there shall be instituted threatened or be pending by any person or Governmental Authority governmental entity any suit, action or proceeding that is reasonably likely to prevail proceeding, (ia) challenging the acquisition by EastGroup or the Purchaser of any Common Shares or Preferred Shares under the Offer, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane the performance of any of the other transactions contemplated by the Merger Agreement, or seeking to obtain from the Company, EastGroup or the Purchaser any damages that are material in relation to the Company and its anticipated benefits of the Merger, subsidiaries taken as a whole; (iib) seeking to prohibit or materially limit the ownership or operation by Signalthe Company, Crane EastGroup or any of their respective subsidiaries of a material portion of the business, operations business or assets of Signal the Company and its subsidiaries, taken as a whole, or Crane and/or EastGroup and its subsidiaries subsidiaries, taken as a whole, or to compel Signal the Company or Crane EastGroup to dispose of or hold separate any material portion of the business or assets of Signal the Company and its subsidiaries, taken as a whole, or Crane and/or EastGroup and its subsidiaries subsidiaries, taken as a whole, as a result of the Offer or any of the other transactions contemplated by the Merger or Agreement; (iiic) seeking to impose material limitations on the ability of Crane EastGroup or the Purchaser to acquire or hold, or exercise full rights of ownership of Sharesof, any Common Shares or Preferred Shares accepted for payment pursuant to the Offer including, without limitation, the right to vote such Common Shares and Preferred Shares on all matters properly presented to the stockholders shareholders of Signal;
the Company; (bd) seeking to prohibit EastGroup or any of its subsidiaries from effectively controlling in any material respect the business or operations of the Company and its subsidiaries, taken as a whole; or (e) which otherwise is reasonably likely to have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole; (ii) there shall be any statute, rulerules, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken by any Governmental Authority governmental entity or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described referred to in clauses (ia) through (e) of paragraph (i) above; (iii) of subsection (a) above;
the Board of Trustees of the Company or any committee thereof shall have withdrawn or modified in a manner adverse to EastGroup or the Purchaser its approval or recommendation of the Offer, the Merger or the Merger Agreement, or approved or recommended any takeover proposal or (cb) the Company shall have entered into any agreement with respect to any Acquisition Proposal in accordance with the Merger Agreement; (iv) there shall have occurred a Material Adverse Effect with respect to Signal;
(ia) the Board any general suspension of Directors of Signal shall have withdrawn, modifiedtrading in, or changed its approval limitation on prices for, securities on any national securities exchange or recommendation in respect the over-the-counter market in the United States (excluding any coordinated trading halt triggered solely as a result of a specified decrease in a market index); (b) any extraordinary or material adverse change in the Merger Agreementfinancial market or major stock exchange indices in the United States; (c) any material adverse change in United States currency exchange rates or a suspension of, or limitation on, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date)markets therefor; provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, ; (ye) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on governmental entity on, or other event that might materially affect, the extension of credit by banks or other lending institutions, which ; or (f) in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect any of the foregoing existing on the date of the Merger Agreement (i.e.Agreement, April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane a material acceleration or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.worsening thereof; 30
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, the Purchaser shall not be required to accept for payment oror pay for, subject to any applicable rules Shares, and regulations may extend, terminate or amend the Offer and may postpone the acceptance for payment of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer if (i) there shall not have been validly tendered and not withdrawn immediately prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that Minimum Condition shall not have a per share exercise price of less than $13.25)been satisfied, (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act, the German Act Against Restraints of Competition or any material applicable foreign statute or regulation shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any the acceptance for payment or payment for any Shares pursuant to the Offerof Shares, any one or more of the following events conditions shall have occurredexist:
(a) there any Governmental Entity of competent jurisdiction shall be instituted have issued an Order or be pending by ruling or taken any person other action permanently restraining, enjoining or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit otherwise prohibiting or materially limit the ownership delaying or operation by Signalpreventing any Transaction and such order, Crane decree, injunction, ruling or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signalother action shall have become final and non-appealable;
(b) any statute, rule, regulation, judgment, order or injunction there shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or pending any other action shall be taken Litigation by any Governmental Authority Entity with appropriate jurisdiction, or courtthere shall have been any Law or interpretation enacted, promulgated, amended or issued applicable to, in either case (i) Parent, the Company or any subsidiary or Affiliate of Parent or the Company or (ii) any Transaction, by any 38 Table of Contents Governmental Entity with appropriate jurisdiction, other than the routine application of the waiting period provisions of the HSR Act to the Offer or the Merger of applicable waiting periods under the HSR ActMerger, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses Person:
(i) through challenging or seeking to make illegal or otherwise restrain or prohibit or make materially more costly the making of the Offer, the acceptance for payment of any Shares by Parent, Purchaser or any other affiliate of Parent, or the purchase of Shares, or the consummation of any other Transaction;
(ii) seeking to prohibit or limit materially the ownership or operation by the Company, Parent or any of their subsidiaries of all or any of the business or assets of the Company, Parent or any of their subsidiaries that is material to either Parent and its subsidiaries or the Company and the Subsidiaries, in either case, taken as a whole, or to compel the Company, Parent or any of their subsidiaries, as a result of the Transactions, to dispose of or to hold separate all or any portion of the business or assets of the Company, Parent or any of their subsidiaries that is material to either Parent and its subsidiaries or the Company and the Subsidiaries, in each case, taken as a whole;
(iii) seeking to impose any limitation on the ability of subsection Parent, Purchaser or any other affiliate of Parent to exercise effectively full rights of ownership of any Shares, including, without limitation, the right to vote any Shares acquired by Purchaser pursuant to the Offer or otherwise on all matters properly presented to the Company’s stockholders, including, without limitation, the approval and adoption of this Agreement and the Transactions; or
(aiv) aboveseeking to require divestiture by Parent, Purchaser or any other affiliate of Parent of any Shares;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) since the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect date of the Merger Agreement, the Merger any Material Adverse Effect, or the Offer any occurrence, circumstance or event that is reasonably likely to result in a manner adverse to the Merger or the OfferMaterial Adverse Effect, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actionsoccurred;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurredoccurred (i) any general suspension of trading in, and continued or limitation on prices for, securities on the New York Stock Exchange or The Nasdaq National Market for a period in excess of 24 hours (excluding suspensions or limitations resulting solely from physical damage or interference with such exchanges not related to existmarket conditions), (xii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates (whether or not mandatory), (yiii) a commencement any limitation (whether or not mandatory) by any United States Governmental Entity on the extension of a war, armed hostilities credit generally by banks or other national financial institutions, or international calamity involving the United States or, (iv) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening or acceleration thereof, ;
(e) (A) the representations and warranties of the Company with respect to capitalization matters shall not be true and correct in all material respects or (zB) a material limitation (whether or not mandatory) by any Governmental Authority on the extension representations and warranties of credit by banks or other lending institutions, which the Company set forth in the case Merger Agreement shall not be true and correct, in each of clauses (x)A) and (B):
(i) as of the date referred to in any representation or warranty which addresses matters only as of a particular date, or
(yii) or (z) prevents Crane from borrowing money pursuant as to its credit facilities in effect on all other representations and warranties, as of the date of the Merger Agreement and as of such time on or after the date of the Merger Agreement including the scheduled expiration of the Offer, unless in the case of clause (i.e.B) the inaccuracies without giving effect to any materiality or Material Adverse Effect qualifications or materiality exceptions contained therein under such representations and warranties, April 16taking all the inaccuracies under all such representations and warranties together in their entirety, 2003do not constitute and could not reasonably be expected to result in a Material Adverse Effect;
(f) the Company shall have failed to perform any obligation or to comply with any agreement or covenant to be performed or complied with by it under Section 7.1 or Section 7.2 of the Merger Agreement or the Company shall have failed to perform, in any material respect, any other obligation or to comply, in any material respect, with any other agreement or covenant of the Company to be performed or complied with by it under the Merger Agreement;
(g) the Board or any committee thereof shall have (i) withdrawn, or modified or changed in a manner adverse to the Transactions, to Parent or to Purchaser (including by amendment of the Schedule 14D-9), its recommendation of the Merger Agreement, the Offer, or the Merger, (ii) recommended any Acquisition Proposal, (iii) taken a neutral position or made no recommendation with respect to any Acquisition Proposal after a reasonable amount of time 39 Table of Contents (and in no event more than ten Business Days following receipt thereof) has elapsed for the Board or any committee thereof to review and make a recommendation with respect thereto, (iv) authorized the Company to enter into any agreement with respect to any Superior Proposal in accordance with the non-solicitation provisions of the Merger Agreement; or (v) resolved to do any of the foregoing;
(h) Purchaser shall have failed to receive a certificate executed by the Company’s Chief Executive Officer or Chief Financial Officer on behalf of the Company, dated as of the scheduled expiration of the Offer, to the effect that the conditions described in paragraphs (c), (e), (f) and (g) of this Section 15 have not occurred; or
(i) the Merger Agreement shall have been terminated in accordance with its terms. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and Purchaser and may be asserted by Crane or Purchaser regardless of may, except for the circumstances giving rise to any such conditions and may Minimum Condition, be waived by Crane Parent or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their the sole discretion, in each case, subject to any applicable provisions discretion of the Merger AgreementParent or Purchaser. The failure by Crane Parent or 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, right which may be asserted at any time and from time to time-to-time.
Appears in 1 contract
Sources: Offer to Purchase (Molex Inc)
CERTAIN CONDITIONS OF THE OFFER. CONDITIONS TO THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and (subject to any such rules or regulations) may delay the acceptance for payment of any tendered Shares and (except as provided in the Merger Agreement) amend or terminate the Offer (whether or not any Shares tendered have theretofore been purchased or paid for pursuant to the Offer if Offer) (A) unless the following conditions shall have been satisfied: (i) there shall not have been validly tendered the Minimum Condition and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer Offer, or (iiiB) if at any time on or after the date of the Merger Agreement and prior to any the time of acceptance of Shares for payment or payment for therefor any Shares pursuant to the Offer, any one or more of the following events shall have occurredconditions exists:
(a) there shall be instituted in effect an injunction or be pending other order, decree, judgment or ruling by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission of competent jurisdiction or a statute, rule, regulation, executive order or other action shall have been promulgated, enacted or taken by a governmental authority or a governmental, regulatory or administrative agency or commission of competent jurisdiction which in any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail such case (i) challenging restrains or seeking to restrain or prohibit prohibits the making or consummation of the Offer or Offer, the consummation of the Merger or the purchase of Shares pursuant to substantially deprive Crane of any of its anticipated benefits of the MergerTender Agreement, (ii) seeking to prohibit prohibits or materially limit restricts the ownership or operation by Signal, Crane ▇▇▇▇▇▇'▇ (or any of their respective subsidiaries its affiliates or subsidiaries) of a any material portion of the businessits or ▇▇▇▇▇▇▇▇'▇ business or assets, operations or assets compels ▇▇▇▇▇▇'▇ (or any of Signal its affiliates or Crane and/or its subsidiaries or to compel Signal or Crane subsidiaries) to dispose of or hold separate any material portion of the its or ▇▇▇▇▇▇▇▇'▇ business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or assets, (iii) seeking to impose imposes material limitations on the ability of Crane or Purchaser ▇▇▇▇▇▇'▇ effectively to acquire or to hold or to exercise full rights of ownership of the Shares, including, without limitation, the right to vote such the Shares purchased by Purchaser on all matters properly presented to the stockholders of Signal;Beringer, (iv) imposes any material limitations on the ability of ▇▇▇▇▇▇'▇ or any of its affiliates or subsidiaries effectively to control in any material respect the business and operations of Beringer, or (v) which otherwise would have a Beringer Material Adverse Effect; or
(b) any statute, rule, regulation, judgment, order or injunction there shall be enactedinstituted or pending any action or proceeding by a governmental authority before any governmental, enteredregulatory or administrative agency or commission of competent jurisdiction seeking any injunction, enforcedorder, promulgated decree, judgment or deemed applicable to the Offer and/or the Merger, or ruling having any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, effect set forth in any of the consequences described in clauses (i) through (iii) of subsection (a) above;; or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated by Beringer or ▇▇▇▇▇▇'▇ in accordance with its terms;terms or any event shall have occurred which gives ▇▇▇▇▇▇'▇ or Purchaser the right to terminate the Merger Agreement or not consummate the Merger; or
(fd) (i) any of the representations and warranties of Signal set forth representation or warranty made by Beringer in the Merger Agreement shall not be have been true and correct (without regard in all material respects when made if the representation or warranty is not qualified as to any materiality qualifications or references to a Beringer Material Adverse Effect contained in any specific representation or warranty) as or, if such representations and warranties were made at the time of any such determinationso qualified, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations true and warranties so correct when made, or shall have ceased to be true and correct would in all material respects as of the Expiration Date as if made as of such date if the representation or warranty is not have qualified as to materiality or a Beringer Material Adverse Effect on Signal or prevent or materially delay the consummation or, if so qualified, shall have ceased to be true and correct, (ii) as of the Offer;
(g) Signal Expiration Date, Beringer shall not in all material respects have failed to perform in performed any obligation or agreement and complied with its material respect any of its obligations required covenants to be performed and complied with by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal or (iii) Beringer or any Selling Stockholder shall be afforded up to thirty (30) business days to cure such breachhave materially breached the Tender Agreement; or
(he) there shall have occurredoccurred and be continuing (i) any suspension or limitation of trading in securities generally on the New York Stock Exchange, and continued to existNasdaq Stock Market or Australian Stock Exchange (not including any suspension or limitation of trading in any particular security) or any setting of minimum prices for trading on such exchange, (xii) a declaration of a any banking moratorium declared by the United States, New York or Australian authorities or any suspension of payments in respect of banks in the United States, (yiii) a any commencement of a war, armed hostilities or other international or national or international calamity directly involving the United States oror Australia, in each case having a material adverse effect on the functionality of financial markets in the United States or Australia, or (iv) in the case of any of the foregoing occurrences foregoing, existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof; or
(f) ▇▇▇▇▇▇'▇ and Beringer shall have agreed that ▇▇▇▇▇▇'▇ shall amend the Offer to terminate the Offer or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on postpone the extension payment for Shares pursuant thereto. Subject to the obligations of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of ▇▇▇▇▇▇'▇ and Purchaser under the Merger Agreement (i.e.Agreement, April 16, 2003). The the foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser ▇▇▇▇▇▇'▇ and may be asserted by Crane or Purchaser ▇▇▇▇▇▇'▇ regardless of the circumstances (including any action or inaction by ▇▇▇▇▇▇'▇) giving rise to any such conditions and such conditions, other than the Minimum Condition, may be waived by Crane or Purchaser, by express and specific action to that effect, ▇▇▇▇▇▇'▇ in whole or in part, part at any time and from time to time in their sole discretiontime, in each case, in the exercise of the good faith judgment of ▇▇▇▇▇▇'▇ and subject to any applicable provisions the terms of the Merger Agreement. The failure by Crane or Purchaser ▇▇▇▇▇▇'▇ at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right and each such right shall will be deemed an ongoing right, right which may be asserted at any time and from time to time. A public announcement may be made of a material change in, or waiver of, such conditions, to the extent required by Rules 14d-4(c) and 14d-6, and the Offer may, in certain circumstances, be extended in connection with any such change or waiver. Purchaser acknowledges that the Commission believes that: - if Purchaser is delayed in accepting the Shares it must either extend the Offer or terminate the Offer and promptly return the Shares, and - the circumstances in which a delay in payment is permitted are limited and do not include unsatisfied conditions of the Offer, except with respect to most required regulatory approvals.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the OfferOffer or the Merger Agreement, Purchaser shall not be required to accept for payment or, and subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination of the Exchange ActOffer, Purchaser will not be required to accept for payment or pay for any Shares, may delay the acceptance for payment of any Shares tendered pursuant to Section 1.1(b) of the Merger Agreement, may extend the Offer one or more times, and may terminate the Offer at any time after March 31, 2000 if (ia) there shall the Minimum Condition is not have been validly tendered and not withdrawn prior to satisfied by the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)Expiration Date, (iib) any applicable waiting period (and any extension(s) thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 ("the HSR Act Act") has not expired or terminated, (c) approval of all necessary government officials and agencies shall not have expired or been terminated prior obtained on terms and conditions reasonably satisfactory to the expiration of the Offer Parent, or (iiid) at any time on or after the date of the Merger Agreement July 27, 1999 and prior to any before acceptance for payment or payment for of any Shares pursuant to the OfferShares, any one or more of the following events shall have occurredhas occurred and is continuing:
(a1) there shall be instituted have been any action taken, or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enactedpromulgated, entered, enforced, promulgated enacted, issued or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken Merger by any Governmental Authority domestic or court, foreign court or other than governmental agency which directly or indirectly prohibits or makes illegal the application to acceptance of payment for or purchase of Shares or the consummation of the Offer or the Merger of applicable waiting periods under or the HSR Actother transactions contemplated by the Merger Agreement, that is reasonably likely renders Purchaser unable to resultaccept for payment, directly pay for or indirectly, in any purchase some or all of the consequences described in clauses (i) through (iii) Shares, imposes material limitations on the ability of subsection (a) above;
(c) there shall have occurred Parent effectively to exercise full rights of ownership of the Shares, including the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders, or otherwise has a Material Adverse Effect (as defined in the Merger Agreement) on the Company, or (2) in connection with respect the compliance by Parent and Purchaser with any applicable law or obtaining any requisite consent, Parent will be required to Signalsell or divest any assets or business or prohibited from owning any material portion of the Company's business or assets;
(i) the Board representations and warranties of Directors the Company contained in the Merger Agreement as of Signal July 27, 1999 and as of the consummation of the Offer with the same effect as if made at and as of the consummation of the Offer (except as to any such representation or warranty which speaks as of a specific date) are not true and correct in any respect that is reasonably likely to have a Material Adverse Effect (or if such representations and warranties are qualified by reference to materiality or a Material Adverse Effect, are not true and correct), (ii) the Company shall have failed to perform in all material respects its covenants or agreements contained in the Merger Agreement which would have a Material Adverse Effect on the Company or materially adversely affect (or materially delay) the ability of Purchaser to consummate the Offer or of Parent, Purchaser or the Company to consummate the Merger, and the Company has not cured such breach within five business days after notice by Parent or Purchaser of such breach, or (iii) there has occurred since January 2, 1999 any events or changes which constitute a Material Adverse Effect on the Company;
(c) it shall have been publicly disclosed or Parent shall have otherwise learned that (i) any person or "group" (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement or agreement in principle to acquire beneficial ownership of more than 35% of the Shares or any other class of capital stock of the Company, through the acquisition of stock, the formation of a group or otherwise, or has been granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of more than 35% of the Shares, and (ii) such person or group has not tendered such Shares pursuant to the Offer;
(d) the Company Board has withdrawn, modified, modified or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to Parent (including by amendment of the Merger or Schedule 14D-9) its recommendation of the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions)Agreement, or (iv) the Merger, or recommended another proposal or offer, or the Company Board of Directors of Signal shall have has resolved to take do any of the foregoing actionsforegoing;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have has been terminated in accordance with its terms;; or
(f) there has occurred (i) any general suspension of trading in, or limitation on prices for, securities on the representations and warranties New York Stock Exchange or the Nasdaq National Market, for a period in excess of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist24 hours, (xii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity directly or indirectly involving the United States orthat constitutes a Material Adverse Effect on the Company or materially adversely affects or delays the consummation of the Offer, (iii) the average of the closing prices of the Standard & Poor's 500 Index for any 20 consecutive trading days shall be 25% or more below the closing price of such index on any trading day on or after the date hereof that precedes the commencement of such 20-trading day period, or (iv) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, ; which in the good faith judgment of Parent, in any such case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions condition, makes it inadvisable to proceed with the Offer or the acceptance for payment of tendered Shares. The foregoing conditions, other than the Minimum Condition, are for the benefit of Parent and Purchaser and may be waived by Crane or Parent and Purchaser, by express and specific action to that effect, in whole or in part, part at any time and from time to time in their the sole discretion, in each case, subject to any applicable provisions discretion of the Merger AgreementParent and Purchaser. The failure by Crane Parent or 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, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall not be required to accept for payment, purchase or pay for any Shares tendered, and may terminate or amend the Offer or may postpone the acceptance for payment orof, or the purchase of and the payment for Shares tendered, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c13e-4 (f) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement June 16, 1999 and prior to any acceptance for payment or payment for the Expiration Date (whether any Shares have theretofore been accepted for payment, purchased or paid for pursuant to the Offer) (i) the Closing (as defined in the Agreement and Plan of Merger and Reorganization, by and among PHH Corporation, a Maryland corporation and a wholly owned subsidiary of Cendant ("PHH"), PHH Holdings Corporation, a Texas corporation and a wholly-owned subsidiary of PHH ("Holdings"), Avis and Avis Fleet Leasing and Management Corporation, a Texas corporation and a wholly owned subsidiary of Avis ("Avis Fleet"), dated as of May 22, 1999 (the "Merger Agreement")) pursuant to the Merger Agreement shall not have been consummated in accordance with the terms of the Merger Agreement, or (ii) any one or more of the following events shall have occurred (or shall have been determined by Purchaser to have occurred) that, in Purchaser's judgment in any such case and regardless of the circumstances giving rise thereto (including any action or omission to act by Purchaser or Cendant), makes it inadvisable to proceed with the Offer or with such acceptance for payment or payment:
(a) there shall be have been threatened, instituted or be pending before any court, agency, authority or other tribunal any action, suit or proceeding by any person government or Governmental Authority governmental, regulatory or administrative agency or authority or by any suitother person, action domestic or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Mergerforeign, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction entered, enforced or deemed applicable by any such court, authority, agency or tribunal, which (i) challenges or seeks to make illegal, or to delay or otherwise directly or indirectly to restrain, prohibit or otherwise affect the making of the Offer, the acquisition of Shares pursuant to the Offer or is otherwise related in any manner to, or otherwise affects, the Offer, or (ii) could, in the reasonable judgment of Purchaser, materially affect the business, condition (financial or other), income, operations or prospects of Cendant and its subsidiaries, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of the business of Cendant and its subsidiaries, taken as a whole, or materially impair the Offer's contemplated benefits to Purchaser or Cendant; or
(b) there shall be have been any action threatened or taken, or any approval withheld, or any statute, rule or regulation invoked, proposed, sought, promulgated, enacted, entered, enforcedamended, promulgated enforced or deemed to be applicable to the Offer and/or the Merger, or Cendant or any other action shall be taken of its subsidiaries, by any Governmental Authority government or courtgovernmental, other than regulatory or administrative authority or agency or tribunal, domestic or foreign, which, in the application to the Offer reasonable judgment of Purchaser, would or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, might directly or indirectly, indirectly result in any of the consequences described referred to in clauses clause (i) through or (iiiii) of subsection paragraph (a) above;; or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time declaration of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates (whether or not mandatory); (ii) any general suspension of trading in, or limitation on prices for, securities on any United States national securities exchange or in the over-the-counter market; (yiii) a the commencement of a war, armed hostilities or any other national or international calamity crisis directly or indirectly involving the United States or, in the case of States; (iv) any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on governmental, regulatory or administrative agency or authority on, or any event which, in the reasonable judgment of Purchaser might materially affect, the extension of credit by banks or other lending institutionsinstitutions in the United States; (v) any significant decrease in the market price of Shares or in the market prices of equity securities generally in the United States or any change in the general political, market, economic or financial conditions in the United States or abroad that could have in the reasonable judgment of Purchaser a material adverse effect on the business, condition (financial or otherwise), income, operations or prospects of Cendant and its subsidiaries, taken as a whole, or on the trading in Shares or on the proposed financing of the Offer; (vi) in the case of any of the foregoing existing at the time of the announcement of the Offer, a material acceleration or worsening thereof; or (vii) any decline in either the Dow ▇▇▇▇▇ Industrial Average or the S&P 500 Composite Index by an amount in excess of 10% measured from the close of business on June 16, 1999; or
(d) any change or changes shall have occured or be threatened in the business, condition (financial or other), income, operations or prospects of Cendant and its subsidiaries, taken as a whole, which in the case reasonable judgment of clauses Purchaser is or may be material to Cendant and its subsidiaries taken as a whole; or
(xe) a tender or exchange offer with respect to some or all Shares (other than the Offer), or a merger or acquisition proposal for Cendant, shall have been proposed, announced or made by another person or shall have been publicly disclosed, or Purchaser shall have learned that a person or "group" (ywithin the meaning of Section 13(d)(3) of the Exchange Act) shall have acquired or proposed to acquire beneficial ownership of more than 5% of the outstanding Shares, or any new group shall have been formed that beneficially owns more than 5% of the outstanding Shares; or
(zf) prevents Crane from borrowing money pursuant any person or group shall have filed a Notification and Report Form under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 reflecting an intent to its credit facilities in effect on the date of acquire Cendant or any Shares; or
(g) the Merger Agreement (i.e., April 16, 2003)shall have been terminated. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the Purchaser's sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and condition (including any action or omission by Purchaser) or may be waived by Crane or Purchaser, by express and specific action to that effect, Purchaser in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The Purchaser's failure by Crane or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right right, and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time. In certain circumstances, if Purchaser waives any of the foregoing conditions, it may be required to extend the Expiration Date of the Offer. Any determination by Purchaser concerning the events described above and any related judgment or decision by Purchaser regarding the inadvisability of proceeding with the purchase of or payment for any Shares tendered will be final and binding on all parties.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions term of the OfferOffer or the Merger Agreement, the Purchaser shall not be required to accept for payment or pay for, subject to any applicable rules and regulations of the Commission, including Rule 14e-1(c) of the Exchange Act, any Shares not theretofore accepted for payment or paid for and may terminate or amend the Offer as to such Shares unless (i) the Minimum Condition shall have been satisfied and (ii) any waiting period under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall have expired or been terminated. Furthermore, notwithstanding any other term of the Offer or the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject as aforesaid, to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant to not theretofore accepted for payment or paid for, and may terminate or amend the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any before the acceptance of such Shares for payment or the payment for therefor, any of the following conditions exist or shall occur and remain in effect: (a) there shall have been instituted or pending any action or proceeding by any court, governmental, regulatory or administrative agency or authority that (i) seeks to challenge the acquisition by the Purchaser of Shares pursuant to the Offer, any one restrain, prohibit or more of the following events shall have occurred:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit delay the making or consummation of the Offer or the Merger Merger, or to substantially deprive Crane of obtain any of its anticipated benefits of the Mergermaterial damages in 27 30 connection therewith, (ii) seeking seeks to prohibit make the purchase of or materially limit the ownership payment for some or operation by Signal, Crane or any of their respective subsidiaries of a material portion all of the business, operations or assets of Signal or Crane and/or its subsidiaries or Shares pursuant to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or illegal, (iii) seeking seeks to impose material limitations on the ability of Crane the Parent and the Purchaser (or Purchaser any of their affiliates) effectively to acquire or hold, or to require the Parent and the Purchaser or the Company or any of their respective affiliates or subsidiaries to dispose of or hold separate, any material portion of the assets or the business of the Parent and its subsidiaries taken as a whole or the Company and its subsidiaries taken as a whole, or (iv) seeks to impose material limitations on the ability of the Purchaser (or its affiliates) to exercise full rights of ownership of Sharesthe Shares purchased by it, including, without limitationlimitations, the right to vote such Shares the shares purchased by it on all matters properly presented to the stockholders of Signal;
the Company; or (b) there shall have been promulgated, enacted, entered, enforced or deemed applicable to the Offer or the Merger, by any statutestate, federal or foreign government or governmental authority or by any court, domestic or foreign, any statute (other than the HSR Act), rule, regulation, judgment, decree, order or injunction shall be enactedinjunction, enteredthat, enforcedin the reasonable judgment of the Parent and the Purchaser, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to resultmight, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iiiiv) of subsection (a) above;
; or (c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board any general suspension of Directors of Signal shall have withdrawn, modifiedtrading in, or changed its approval limitation on prices for, securities on any national securities exchange or recommendation in respect of the Merger Agreement, over-the-counter market in the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or PurchaserUnited States, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, or (yiii) a the commencement of a war, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States or, States; or (d) the Company and the Parent shall have reached an agreement or understanding that the Offer or the Merger Agreement be terminated or the Merger Agreement shall have been terminated in the case of accordance with its terms; or (e) (i) any of the foregoing occurrences existing on representations and warranties made by the Company in the Agreement shall not have been true and correct in all material respects when made, or at the time shall thereafter have ceased to be true and correct in all material respects as of such later date (other than representations and warranties made as of a specified date) or (ii) any of the commencement representations and warranties made by the Company in the Merger Agreement shall not have been true and correct when made, or shall thereafter have ceased to be true and correct as if made as of such later date (other than representations and warranties made as of a specified date), in each case, without giving effect to any materiality standard contained in such representation or warranty (including "Company Material Adverse Effect" as previously defined), except to the extent that any such failure to be true and correct, individually and in the aggregate with all such other failures, would not have a Company Material Adverse Effect, or the Company shall not in all material respects have performed each obligation and agreement and complied with each covenant to be performed and complied with by it under the Merger Agreement; or (f) the Company's Board of Directors shall have modified or amended its recommendation of the Offer in any manner adverse to the Parent and the Purchaser or shall have withdrawn its recommendation of the Offer, a material worsening or acceleration thereofshall have recommended acceptance of any Company Acquisition Proposal or shall have resolved to do any of the foregoing; or (g) (i) any corporation, entity or "group" (as defined in Section 13(d)(3) of the Exchange Act) ("person"), other than the Parent, shall have acquired beneficial ownership of 50% or more of Shares, or shall have been granted any options or rights, conditional or otherwise, to acquire a total of 50% or more of Shares; (zii) any new group shall have been formed that beneficially owns 50% or more of Shares; or (iii) any person (other than the Parent or one or more of its affiliates) shall have entered into an agreement in principle or definitive agreement with the Company with respect to a material limitation (whether tender or not mandatory) by exchange offer for any Governmental Authority on the extension of credit by banks Shares or a merger, consolidation or other lending institutionsbusiness combination with or involving the Company; or 28 31 (h) the Parent shall have received the consent of Health Care Property Investors ("HCPI") on behalf of itself and its affiliates to the consummation (the "Consummation") of the Offer, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on Merger and the date of other transactions contemplated by the Merger Agreement and the waiver of any rights (i.e., April 16, 2003)"Rights") HCPI might have under agreements with the Company to terminate or exercise any rights to terminate such agreements or any other rights that would be triggered as a result of a change of control of the Company; provided that no consent shall be required from HCPI if such consent is not required under such agreements for the Consummation and no such Rights exist. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser the Parent and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effectParent, in whole or in part, at any time and from time to time in their sole discretiontime, in each case, subject the reasonable judgment of the Parent regardless of the circumstances giving rise to any applicable provisions of such condition (other than a breach by the Merger AgreementParent or the Purchaser). The failure by Crane or Purchaser the Parent at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any right, the waiver of such right with respect to any particular facts or circumstances shall not be deemed a waiver with respect to any other facts or circumstances, and each such right shall will be deemed an ongoing right, which right that may be asserted at any time and from time to time. Should the Offer be terminated pursuant to the foregoing provisions, all tendered Shares not theretofore accepted for payment shall be returned forthwith by the Depositary to the tendering Holders.
Appears in 1 contract
Sources: Acquisition Agreement (Whitehall Street Real Estate Limited Partnership Vii)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the OfferOffer and in addition to (and not in limitation of) Parent's right to extend and amend the Offer (subject to the terms of the Merger Agreement), Purchaser Parent shall not be required to accept for payment oror pay for, subject to any applicable rules and regulations Rule 14e-l(c) of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant not theretofore accepted for payment or paid for and may terminate or amend the Offer (subject to the Offer terms of the Merger Agreement) as to such Shares if (i) there the Minimum Condition shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser satisfied or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of commencement of the Merger Agreement Offer and prior to any before the acceptance of such Shares for payment or the payment for any Shares pursuant to the Offertherefor, any one or more of the following events conditions exist or shall have occurred:
occur and remain in effect: (a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail have occurred (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates (whether or not mandatory), (yii) a commencement formal declaration of a war, armed hostilities war or other national or international calamity directly or indirectly involving the United States orStates, in the case of (iii) any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority United States governmental authority on the extension of credit by banks or other financial institutions that materially affects the extension 22 of credit by banks or other lending institutions, which or (iv) in the case of clauses any of the foregoing existing at the time of commencement of the Offer, a material acceleration or worsening thereof; or (x)b) there shall have been any action taken, or any statute, rule, regulation, judgment, order or injunction promulgated, entered, enforced, enacted issued or deemed applicable to the Offer or the Merger by any court, government or governmental authority or agency, domestic or foreign, which (i) prohibits Parent's ownership or operation of all or a material portion of its or the Company's (or any of their respective subsidiaries') business or assets, or compels Parent to dispose of or hold separate all or a material portion of its or the Company's (or any of their respective subsidiaries') business or assets as a result of the Offer or the Merger, (yii) prohibits, or makes illegal the acceptance for payment or payment for Shares or the consummation of the Offer or the Merger, or (iii) imposes material limitations on the ability of Parent or Purchaser effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by Purchaser on all matters properly presented to the Company's stockholders; provided, however, that with respect to any action, ruling or order taken or made by any court, government or governmental authority or agency that is preliminary, until such action, ruling or order becomes final, Parent may not terminate the Offer, but shall extend the expiration of the Offer and shall postpone acceptance for payment or purchase of, or payment for, any Shares pursuant to this paragraph (b); further provided, however, that in no event shall Parent be obligated to attempt to cause any such decree, order or injunction to be vacated or reversed or to extend the Offer beyond December 31, 1996; or (c) the Merger Agreement shall have been terminated in accordance with its terms; or (d) any of the representations and warranties of the Company set forth in the Merger Agreement were inaccurate when made or became inaccurate at any time thereafter (other than (i) any misrepresentations that, in the aggregate, do not have a material adverse effect on the Company or (ii) any misrepresentations that the Company cures within five (5) business days after notice thereof is given by Parent (except that no cure period shall be provided for a breach by the Company which, by its nature, cannot be cured)) or the Company shall have failed in any material respect to perform any material obligation or covenant required by the Merger Agreement to be performed or complied with by it which failure would have a material adverse effect on the Company; or (e) the Board of Directors of the Company shall have withdrawn or modified in any material respect its recommendation of the Offer; provided, however, that this condition shall not be deemed to exist, and Purchaser shall have no right to terminate the Offer or not accept for payment or pay for Shares, if as a result of the Company's receipt of a proposal for the acquisition of all or a material portion of the business or assets of the Company or the Shares, the Company withdraws, modifies or amends its approval or recommendation of the Offer, the Merger or the Merger Agreement by reason of taking and disclosing to the Company's stockholders a position contemplated by Rule 14e-2(a)(2) or (z3) prevents Crane from borrowing money pursuant promulgated under the Exchange Act with respect to its credit facilities in effect on such proposal, the date of Offer, the Merger or the Merger Agreement and if within five (i.e.5) business days of taking and disclosing to its stockholders the aforementioned position, April 16the Company publicly reconfirms its recommendation of the Offer, 2003). The foregoing conditions the Merger and the Merger Agreement; or (including those set forth in clauses f) the waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act shall not have expired or been terminated; provided, however, that (i) until such HSR Act waiting periods expire or terminate, Parent may not terminate the Offer (but shall extend the expiration of the Offer and shall postpone acceptance for payment or purchase of, or payment for, any Shares pursuant to this paragraph (f)); further provided, however, that in no event shall Parent be obligated to extend the Offer beyond December 31, 1996 and (ii) unless Parent theretofore shall have terminated the Offer in accordance with the terms of the initial paragraph of this Section 14) are for Merger Agreement, Parent shall continue to seek to resolve any action or proceeding in accordance with the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane ; or 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, which may be asserted at any time and from time to time.23
Appears in 1 contract
Sources: Offer to Purchase (Nash Finch Co)
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 15, capitalized terms used but not defined herein will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions provision of the Offer, Purchaser shall will not be required to accept for payment or, subject to any the applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer if Offer, unless (i) there the Minimum Condition shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), satisfied; (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act Condition shall not have expired or been terminated prior to the expiration of the Offer or satisfied; and (iii) at any time on or after the date then scheduled Expiration Date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more none of the following events conditions shall have occurredexist:
(a) there shall be instituted in effect any Law, injunction, judgment or be pending ruling enacted, promulgated, issued, entered, amended or enforced by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging restrains, enjoins, prevents, prohibits or seeking makes illegal the acceptance for payment, payment for or purchase of some or all of the Shares by Purchaser or Parent pursuant to restrain the Offer, or prohibit the making or consummation of the Transactions, (ii) imposes limitations on the ability of Purchaser, Parent or any of their Affiliates effectively to exercise full rights of ownership of the Shares, including the right to vote the Shares purchased by them on all matters properly presented to the Company’s stockholders on an equal basis with all other stockholders (including the adoption of the Merger Agreement), (iii) restrains, enjoins, prevents, prohibits or makes illegal, or imposes material limitations on, Parent’s, Purchaser’s or any of their Affiliates’ ownership or operation of all or any material portion of the businesses and assets of the Company and its Subsidiaries, taken as a whole, or, as a result of consummating the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, of Parent and its Affiliates, taken as a whole, (iiiv) seeking to prohibit or materially limit the ownership or operation by Signalcompels Parent, Crane Purchaser or any of their respective subsidiaries Affiliates to dispose of any Shares or, as a material portion result of the businessTransactions, operations compels Parent, Purchaser or assets any of Signal or Crane and/or its subsidiaries or to compel Signal or Crane their Affiliates to dispose of or hold separate any material portion of the business businesses or assets of Signal the Company and its Subsidiaries, taken as a whole, or Crane and/or of Parent and its subsidiaries Affiliates, taken as a whole, or (v) imposes material damages on Parent, the Company or any of their respective Subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of SignalTransactions;
(b) any statute, rule, regulation, judgment, order or injunction there shall be any Law enacted, enteredissued, enforcedpromulgated, promulgated amended or deemed applicable to the Offer and/or the Merger, or any other action shall be taken enforced by any Governmental Authority applicable to (i) Parent, the Company or court, any of their respective Affiliates or (ii) the Transactions (other than the routine application to of the Offer or the Merger waiting period provisions of applicable waiting periods under the HSR Act, ) that results or is reasonably likely to result, directly or indirectly, in any of the consequences described referred to in clauses (i) through (iii) of subsection paragraph (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, and in addition to (and not in limitation of) the Purchaser's rights to amend the Offer (subject to the terms of the Merger Agreement), the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including including, without limitation, Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or to return tendered Shares promptly after termination or withdrawal of the Offer), pay for any Shares tendered pursuant to the Offer, and may postpone the acceptance for payment or, subject to the restrictions referred to above, payment for, any Shares tendered pursuant to the Offer, and may terminate or amend the Offer if and not accept for payment any Shares if:
(i) there the Minimum Condition shall not have been validly tendered and not withdrawn satisfied or waived pursuant to the Merger Agreement prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), Expiration Date,
(ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or Expiration Date,
(iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment the Initial Expiration Date of the Offer (or payment for any Shares pursuant to extended expiration date of the OfferOffer only if under the Merger Agreement these conditions remain applicable), any one or more of the following events shall have occurredconditions exist:
(a) there shall be instituted and remain pending any action, investigation or be pending proceeding by any person government or Governmental Authority governmental authority or agency, domestic or foreign, or by any suitother person, action before any court or proceeding that is reasonably likely to prevail governmental authority or agency, domestic or foreign,
(i1) challenging the acquisition by Parent or the Purchaser of any Shares under the Offer, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane the performance of any of its anticipated benefits of the Mergerother transactions contemplated by the Merger Agreement or seeking to require the Company, Parent or the Purchaser to pay any damages related to the Offer, the Merger or the other transactions contemplated by the Merger Agreement that are material in relation to the Company taken as a whole,
(ii2) seeking to impose limitations on the ability of the Purchaser, or to render the Purchaser unable to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger,
(3) seeking to restrain or prohibit or materially limit the Parent's ownership or operation by Signal, Crane (or that of Parent's subsidiaries) of all or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company or Crane and/or its subsidiary or of Parent or its subsidiaries as a result or to compel Parent or its subsidiaries to dispose of or hold separate all or any portion of the Offer business or assets of the Merger Company or its subsidiary or of Parent or its subsidiaries,
(iii4) seeking to impose material limitations on the ability of Crane Parent, the Purchaser or Purchaser any other subsidiary of Parent effectively to acquire or exercise full rights of ownership of the Shares, including, without limitation, the right to vote such any Shares acquired or owned by Parent, the Purchaser or any other subsidiary of Parent on all matters properly presented to the stockholders Company's shareholders, except such limitations on voting securities as may be required as a result of Signal;Parent or the Purchaser not complying with applicable securities laws,
(5) seeking to require divestiture by Parent, the Purchaser or any other subsidiary of Parent of any Shares, or
(6) that otherwise is reasonably likely to have a material adverse effect on the Company; or
(b) there shall have been any action taken, or any statute, rule, regulation, judgmentinjunction, order or injunction shall be decree proposed, enacted, entered, enforced, promulgated promulgated, issued or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken by any Governmental Authority court, government or courtgovernmental authority or agency, domestic or foreign, other than the routine application of the waiting period provisions of the HSR Act to the Offer or the Merger of applicable waiting periods under the HSR ActMerger, that is reasonably likely to resultlikely, directly or indirectly, to result in any of the consequences described referred to in clauses (i1) through (iii6) of subsection paragraph (a) above;; or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal the Company (1) shall have withdrawn, modifiedor modified in a manner adverse to Parent, or changed its approval or recommendation in respect of the Merger Agreement, the Merger Offer or the Offer in a manner adverse to the Merger or the Offer, (2) shall have failed to reaffirm such approval or adverse to Crane or Purchaser, recommendation upon Parent's reasonable request; or
(iid) the Board of Directors of Signal Company shall have recommended any Competing Transaction, (iii) Signal shall have violated breached or breached failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of its obligations the Company required to be performed or complied with by it under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) prior to the Board of Directors of Signal shall have resolved to take any consummation of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, ; or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth the Company contained in the Merger Agreement shall not be true and correct correct, individually or in the aggregate, so as to be reasonably likely to have a material adverse effect on the Company, in each case, when made or (without regard except those that speak as to any materiality qualifications or references to Material Adverse Effect contained in any a specific representation or warrantydate) as of the expiration date as set forth in the first sentence to this clause (iii) of the Offer as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breachtime; or
(he) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) occurred a commencement of a war, war or armed hostilities or other national or international calamity directly or indirectly involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, that is reasonably expected to have a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in adverse effect on the date of Company; or
(f) the Merger Agreement shall have been terminated by Parent in accordance with its terms; or
(i.e.g) Parent shall not have received an opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Singer & ▇▇▇▇▇▇▇▇▇, April 16LLP pursuant to the Merger Agreement in substantially the form attached to the Merger Agreement,
(iv) the ▇▇▇▇▇▇▇▇▇▇ Incentive Compensation Agreement in substantially the form attached to the Merger Agreement shall not be in effect, 2003)or
(v) any employee of the Company, or the Company subsidiary, who owes any indebtedness to the Company or any Company subsidiary has not either (1) repaid all principal and interest due thereon in full or (2) instructed ChaseMellon Shareholder Services, L.L.C. to pay to Parent an amount equal to such principal and interest out of the proceeds due such employee pursuant to the Offer and to remit the balance of such proceeds to such employee. The Except as otherwise provided in the Merger Agreement, the foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and the Purchaser and may be asserted by Crane or Purchaser regardless may, subject to the terms of the circumstances giving rise to any such conditions and may Agreement, be waived by Crane Parent or Purchaser, by express and specific action to that effect, the Purchaser in whole or in part, part at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane Parent or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to timetime prior to the earlier of the scheduled expiration date of the Offer or when payment for the Shares tendered pursuant to the Offer should have been made by Parent or the Purchaser. A public announcement will be made of a material change in, or waiver of, such conditions to the extent required by Rules 14d-4(c) and 14d-6(d) under the Exchange Act, and the Offer will be extended in connection with any such change or waiver to the extent required by such rules.
Appears in 1 contract
Sources: Merger Agreement (International Rectifier Corp /De/)
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 15, capitalized terms used but not defined herein will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions provision of the Offer, the Purchaser shall not be required to accept for payment or, subject to any the applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer if Offer, unless (i) there the Minimum Condition shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), satisfied; (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act Condition shall not have expired or been terminated prior to the expiration of the Offer or satisfied; (iii) the Governmental Approval Condition shall have been satisfied; and (iv), at any time on or after the date then scheduled Expiration Date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more none of the following events conditions shall have occurredexist:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, decree, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or which is deemed applicable pursuant to an authoritative interpretation by or on behalf of a Government Entity to the Offer and/or Offer, the MergerMerger or any other transaction contemplated by the Agreement, or any other action shall be taken by any Governmental Authority or courtEntity, other than the application to the Offer or the Merger of applicable waiting periods under the HSR ActAct or similar waiting periods with respect to the Other Required Governmental Approvals, that is reasonably likely to result, directly or indirectly, which in any such case (A) restrains or prohibits the making or consummation of the consequences described in clauses Offer or the consummation of the Merger or the performance of the other transactions contemplated by this Agreement or (B) prohibits or materially limits the ownership or operation by GenTek, Parent or any of their respective subsidiaries of any portion of any business or of any assets of GenTek, Parent or any of their respective subsidiaries;
(b) (i) through the representations and warranties of GenTek contained in Section 3.2(a) (Subsidiaries), Section 3.4(a) (Authority), Section 3.10(a) (Absence of Certain Changes or Events), Section 3.23 (Opinion of Financial Advisor), Section 3.26 (Required Vote) and Section 3.27 (Brokers) of the Merger Agreement shall not be true and correct in all respects, in each case both when made and at and as of the Expiration Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), (ii) the representations and warranties of GenTek contained in Section 3.3 (Capitalization) of the Merger Agreement shall not be true and correct in all respects, other than immaterial misstatements or omissions, both when made and at and as of the Expiration Date, as if made at and as of such time and (iii) all other representations and warranties of subsection GenTek set forth in the Merger Agreement shall not be true and correct both when made and at and as of the Expiration Date, as if made at and as of such time (aexcept to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) abovedoes not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(c) GenTek shall have breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement and such breach or failure shall not have been cured on or prior to the Expiration Date;
(d) since the date of the Merger Agreement, there shall have occurred a Company Material Adverse Effect Effect;
(e) GenTek shall have failed to deliver to Parent a certificate executed on behalf of GenTek by the chief executive officer and chief financial officer of GenTek certifying that none of the conditions in clauses (b), (c) or (d) above have occurred; 31 Table of Contents
(f) any of the Tender and Support Agreements is not in full force and effect, unless terminated in accordance with respect the terms of such Tender and Support Agreement;
(g) GenTek Holding, LLC has not entered into agreements or arrangements on terms acceptable to Signalthe Purchaser and Parent providing that, subject to and as promptly as possible following the receipt of funds by GenTek Holding, LLC pursuant to the Debt Financing, GenTek Holding, LLC will loan to the Purchaser, by no later than the date determined by the Purchaser, all or a portion of such funds in excess of the amount used to repay the existing indebtedness of GenTek, the specific amount of which shall be determined by the Purchaser, and which amount shall be paid in accordance with the direction of the Purchaser;
(h) GenTek and its subsidiaries have not entered into agreements or arrangements with the Purchaser on terms acceptable to the Purchaser and Parent providing for the loan to the Purchaser, by no later than the date determined by the Purchaser, all the cash and cash equivalents of GenTek and its subsidiaries on hand as of immediately prior to the Acceptance Date other than such amount of cash or cash equivalents as is required to be retained by GenTek or its subsidiaries pursuant to the Debt Commitment Letter, which funds shall be paid in accordance with the direction of the Purchaser;
(i) GenTek and its subsidiaries have not entered into agreements or arrangements providing for the Board Internal Reorganization steps required to be completed by GenTek prior to the scheduled Expiration Date (other than steps that Parent or the Purchaser has indicated in writing to the Company prior to the scheduled Expiration Date should not be undertaken);
(j) as of Directors the Expiration Date, any of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect the conditions to the consummation of the Merger Agreement, the Merger or the Offer set forth in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 Article 6 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) are unable to be satisfied by the Board of Directors of Signal shall have resolved to take any of the foregoing actions;Closing Date; or
(ek) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and the Purchaser and may be asserted by Crane Parent or the Purchaser regardless of the circumstances giving rise to any such conditions and condition, (ii) other than the Minimum Condition, may be waived by Crane or Parent and the Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time time, in their sole discretion, in each case, subject to any applicable provisions the terms of the Merger AgreementAgreement and the applicable rules and regulations of the SEC and (iii) other than the Minimum Condition, shall be deemed met if such condition or requirement is so waived. The failure by Crane Parent or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right rights and each such right shall be deemed an ongoing right, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares tendered pursuant to the Offer if Shares, unless (ia) there shall not have been are validly tendered and not properly withdrawn prior to the expiration of the Offer Expiration Date that number of Shares which, when added to aggregated with the Shares currently beneficially owned by Parent, represent at least 90% of the total number of outstanding Shares, if anyon a fully diluted basis, previously acquired on the date of purchase; provided, that following the Initial Expiration Date, Purchaser may accept for payment or pay for tendered Shares which, when aggregated with the Shares currently beneficially owned by Purchaser or Crane or any of their respective affiliatesParent, represents a majority represent at least 75% of the then total issued number of outstanding Shares, on a fully diluted basis, on the date of purchase, satisfy the Minimum Condition and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (iib) any applicable waiting period (and any extension(s) thereof) under the HSR Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended, or under any applicable foreign statutes or regulations shall not have expired or been terminated prior terminated. Furthermore, notwithstanding any other provisions of the Offer, Purchaser may, subject to the expiration terms of the Merger Agreement, amend or terminate the Offer or (iii) postpone the acceptance for payment of or payment for tendered Shares if at any time on or after March 10, 1999 (unless otherwise indicated below) and before the date time of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the OfferShares, any one or more of the following events shall have occurred:
occur: - there shall be any action taken, or any statute, rule, regulation, legislation, interpretation, judgment, order or injunction enacted, enforced, promulgated, amended, issued or deemed applicable to the Offer, by any legislative body, court, government or governmental, administrative or regulatory authority or agency, other than the routine application of the waiting period provisions of the Hart-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, to the Offer or to the Merger, that would reasonably be expected to: (a) there shall be instituted make illegal or be pending by any person otherwise prohibit or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or materially delay consummation of the Offer or the Merger or seek to substantially deprive Crane of any of its anticipated benefits obtain material damages or make materially more costly the making of the MergerOffer, (iib) seeking to prohibit or materially limit the ownership or operation by Signal, Crane Parent or any Purchaser of their respective subsidiaries of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company or Crane and/or any of its subsidiaries taken as a result whole or compel Parent or Purchaser to dispose of or hold separately all or any material portion of the Offer business or assets of Parent or Purchaser or the Merger Company or any of its subsidiaries taken as a whole, or seek to impose any material limitation on the ability of Parent or Purchaser to conduct its business or own such assets, (iiic) seeking to impose material limitations on the ability of Crane Parent or Purchaser effectively to acquire acquire, hold or exercise full rights of ownership of the Shares, including, without limitation, the right to vote such any Shares acquired or owned by Purchaser or Parent on all matters properly presented to the stockholders Stockholders, or (d) require divestiture by Parent or Purchaser of Signal;
(b) any statute, rule, regulation, judgment, order Shares; or injunction - there shall be enacted, entered, enforced, promulgated any pending Action challenging or deemed applicable seeking to restrain or prohibit the Offer and/or consummation of the Merger, transactions contemplated by the Merger Agreement or any other action Action filed against the Company or any of its subsidiaries after the date of the Merger Agreement which, if adversely determined, could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or the consummation of the transactions contemplated by the Merger Agreement; or - there shall have occurred any development that has, or would reasonably be expected to have, a material adverse effect on the business, assets, liabilities, financial condition, results of operations or prospects of the Company and its subsidiaries taken by as a whole, excluding any Governmental Authority development or court, other than event arising out of or attributable to the application to United States economy generally; or - the Company and Purchaser and Parent shall have reached an agreement that the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offerbe terminated, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) ; or - any of the representations and warranties of Signal the Company (a) set forth in the Merger Agreement that are qualified as to materiality or (b) relating to the capitalization of the Company shall not be true and correct; or - any representations and warranties in the Merger Agreement that are not qualified by materiality shall not be true and correct (without regard in any respect which would reasonably be expected to any materiality qualifications or references to have a Material Adverse Effect contained on the Company, in any specific representation or warranty) each case, as if such representations and warranties were made at the time of any such determination, except as to any such representation or warranty which speaks as of a specific date, which must be untrue or incorrect in the extent such representations and warranties expressly relate to an earlier date (in which case foregoing respects as of such specific date); provided, that or 46 49 - the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal Company shall have failed to perform in any material respect or to comply in any material respect with any of its obligations required to be performed by it obligations, covenants or agreements under the Merger Agreement at Agreement; or prior - the Special Committee shall have withdrawn or modified in a manner adverse to consummation Parent or Purchaser the adoption or recommendation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of or the Merger Agreement; or - the Special Committee shall have resolved to withdraw or modify in a manner adverse to Parent or Purchaser the adoption or recommendation of the Offer, Signal shall be afforded up to thirty (30) business days to cure such breachthe Merger or the Merger Agreement; or
(h) or - there shall have occurred, and continued to exist, (xa) any general suspension of, or limitation on prices for, trading in securities on the NYSE or on the Paris Bourse (excluding suspensions or limitations resulting solely from physical damage or interference with such exchanges not related to market conditions, (b) any decline of at least 20% in either the Dow Jone▇ ▇▇▇rage of Industrial Stocks or the Standard & Poor's 500 Index from the close of business on the last trading day immediately preceding the date of the Merger Agreement, (c) any change in currency exchange rates measured from the close of business on the date of the Merger Agreement, resulting in an increase of 15% or more in the Per Share Amount as translated from U.S. Dollars into French Francs, (d) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates or France, (ye) a commencement of a war, armed hostilities or other significant national or international calamity crisis directly or indirectly involving the United States oror France, or (f) in the case of any of the foregoing occurrences clauses (a) through (e) existing on or at the time of the commencement of the Offer, a material acceleration or worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) described above are for the sole benefit of Crane Parent and Purchaser and may be asserted by Crane Parent or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane Parent or Purchaser, by express and specific action to that effect, Purchaser in whole or in part, part at any time and from time to time in their sole reasonable discretion, in each case, subject to any applicable provisions the terms of the Merger Agreement. The failure by Crane Parent or Purchaser at any time to exercise any of the foregoing rights shall described above will not be deemed a waiver of any such right and each such right shall will be deemed an ongoing right, right which may be asserted at any time and from time to time. Any determination by Purc▇▇▇▇▇ ▇▇▇cerning the events described in this "--Section 12. Certain Conditions of the Offer" will be final and binding on all parties.
Appears in 1 contract
Sources: Offer to Purchase (Pinault Printemps Redoute Sa Et Al)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall will not be required to accept for payment or, subject to the Merger Agreement and any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange Act, pay for, and (subject to any such rules or regulations) may postpone the acceptance for payment of or the payment for any tendered Shares tendered pursuant to and (except as provided in the Merger Agreement) amend or terminate the Offer if if:
(i1) there shall the Minimum Condition has not have been validly tendered and not withdrawn satisfied prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares Offer;
(assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii2) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall has not have expired or been terminated prior to the expiration of the Offer Offer; or
(3) any of the following conditions exist at the expiration date of the Offer:
(a) the representations and warranties of the Company set forth in the Merger Agreement shall not have been true or (iii) at correct in any time on or after material respect as of the date of the Merger Agreement and prior to or there has been a breach by the Company which would have a Company Material Adverse Effect of any acceptance for payment covenant or payment for any Shares pursuant to agreement set forth in the Offer, any one Merger Agreement which is not remedied within five (5) days (or more by the date of expiration of the following events shall have occurred:Offer if sooner) of written notice specifying the breach;
(ai) there shall be instituted any action taken, or be pending any statute, rule, regulation, decree, order or injunction promulgated, enacted, entered into or enforced by any person state, federal or Governmental Authority foreign government or governmental agency or authority or by any suitcourt (domestic or foreign) that would (a) make the acceptance for payment of, action the payment for, or proceeding that is reasonably likely to prevail (i) challenging the purchase of, some or seeking to restrain all of the Shares by Purchaser illegal or otherwise materially restrict or prohibit the making or consummation of the Offer or the Merger Merger, (b) restrict or prohibit the ability of Purchaser, or render Purchaser unable, to substantially deprive Crane accept for payment, pay for or purchase some or all of Shares in a manner that is adverse in any of its anticipated benefits of material respect to the transactions contemplated by the Offer or the Merger, (iic) seeking to prohibit require the divestiture by Parent, Purchaser or materially limit the ownership or operation by Signal, Crane Company or any of their respective subsidiaries of a material portion portions of the their business, operations assets or assets of Signal property or Crane and/or its subsidiaries any Shares, or to compel Signal or Crane to dispose of or hold separate impose any material portion of the limitation on their ability to conduct their business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or and own their assets, properties and Shares, (iiid) seeking to impose material limitations on the ability of Crane Purchaser or Purchaser Parent to acquire or hold or to exercise full effectively all rights of ownership of Shares, including, without limitation, the right to vote such any Shares purchased by Purchaser on all matters properly presented to the stockholders of Signal;
the Company or (be) impose any statute, rule, regulation, judgment, order limitations on the ability of Parent or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, Purchaser or any other of their subsidiaries effectively to control in any material respect the business or operations of the Company or its subsidiaries; (ii) there shall have been instituted, pending or threatened (in writing or by public announcement) an action shall be taken by any Governmental Authority a governmental entity seeking (a) to restrain or court, other than prohibit the application to making or consummation of the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any consummation of the consequences described Merger or (b) to impose any other restriction, prohibition or limitation referred to in clauses the foregoing sub-paragraph (i) through (iii) of subsection (a) above);
(c) since the date of the Merger Agreement there shall have occurred any material adverse effect in the financial condition, business, operations, liquidity, property or assets of the Company and its Subsidiaries taken as a Material Adverse Effect with respect to Signalwhole; PROVIDED, HOWEVER, that events or conditions that affect the automotive supply industry generally and affect all other similarly situated companies in the automotive supply industry shall not be deemed a material adverse change for purposes of this paragraph (c);
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred: (i) any general suspension of trading in, and continued to existor limitation on prices for, securities on any national securities exchange or in the over-the-counter market, (xii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yiii) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority governmental authority on the extension of credit by commercial banks or other commercial lending institutions, which (iv) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States, or (v) in the case of clauses any of the foregoing existing at the time of the commencement of the Offer a material acceleration or worsening thereof;
(x), (ye) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement shall have been terminated in accordance with its terms;
(i.e.f) the Board shall have withdrawn, April 16modified or amended in any respect adverse to Parent or Purchaser its recommendation of the Offer and the Merger or resolved to do so in any manner adverse to Parent or shall have withdrawn its recommendation of the Offer, 2003or shall have recommended acceptance of any Takeover Proposal or shall have resolved to do any of the foregoing; or
(g) any corporation, entity or group (as defined in the Exchange Act), other than Parent and Purchaser shall have acquired beneficial ownership of more than 20% of the outstanding Shares, or shall have been granted any options or rights, conditional or otherwise, to acquire a total of more than 20% of the outstanding Shares and does not tender the Shares beneficially owned by it in the Offer;
(h) the Rights have not been exercised; which in the reasonable judgment of Parent or the Purchaser, in any such case, and regardless of the circumstances giving rise to such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and Purchaser and may be asserted by Crane or Parent and Purchaser regardless of the circumstances giving rise to any such conditions and condition, and, subject to the terms of the Merger Agreement, may be waived by Crane or Parent and Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretiontime, in each case, subject to any applicable provisions the sole discretion of the Merger AgreementParent and Purchaser. The failure by Crane or ▇▇▇▇▇▇ and Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any right, the waiver of such right with respect to any particular facts or circumstances shall not be deemed a waiver with respect to any other facts or circumstances, and each such right shall be deemed an ongoing right, right which may be asserted at any time and from time to time. Should the Offer be terminated pursuant to the foregoing provisions, all tendered Shares not theretofore accepted for payment pursuant thereto shall forthwith be returned to the tendering stockholders.
Appears in 1 contract
Sources: Merger Agreement (Autoliv Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, and in addition to (and not in limitation of) Purchaser's rights, subject to the provisions of the Agreement, to extend and amend the Offer at any time in its sole discretion, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for any Shares tendered pursuant payment of or, subject to the Offer restriction referred to above, the payment for, any tendered Shares, if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall has not have expired or been terminated prior to terminated, (ii) the expiration of the Offer Minimum Condition has not been satisfied, or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to before the OfferExpiration Date (as then extended), any one or more of the following events shall have occurredoccurred and be continuing:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail by any Governmental Entity (i) challenging seeking to prohibit or impose any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective Subsidiaries or Affiliates) of all or a material portion of their or the Company's or any Company Subsidiaries' businesses or assets, or to compel Parent or Purchaser or their respective Subsidiaries and Affiliates to dispose of or hold separate any material portion of the business or assets of the Company, any Company Subsidiaries', Parent's or any of its Subsidiaries, (ii) seeking to prohibit the acquisition by Parent or Purchaser of any Shares under the Offer or pursuant to the Subscription Agreement, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane the performance of any of the other Transactions or the Tender Agreement, (iii) seeking to obtain from the Company, Parent or Purchaser any monetary damages related to a violation of the HSR Act that are material in relation to the Company and the Company Subsidiaries, taking the Company together with its anticipated benefits Subsidiaries as a whole, (iv) seeking to render illegal the ability of Purchaser, or rendering Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer or the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iiiv) seeking to impose material limitations on the ability of Crane Purchaser or Purchaser Parent effectively to acquire or exercise full rights of ownership of the Shares, including, without limitation, including the right to vote such the Shares purchased by it on all matters properly presented to the Company's stockholders of Signalor (vi) which otherwise is reasonably likely to have a Company Material Adverse Effect;
(b) there shall be any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or or the MergerMerger by any Governmental Entity, or any other action shall be taken by any Governmental Authority or courtEntity, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described referred to in clauses (i) through (iiiiv) of subsection paragraph (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
the Company's board of directors or any committee thereof (i) the Board of Directors of Signal shall have withdrawn, modified, modified or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger Parent or Purchaser its approval or recommendation of the Offer, the Agreement or adverse to Crane or Purchaserthe Merger, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, the approval or acceptance of an Acquisition Proposal or (iii) Signal shall have violated executed an agreement in principle or breached definitive agreement relating to an Acquisition Proposal;
(d) any of the representations and warranties of the Company contained in the Agreement shall not be true and correct as of the date of the Agreement or as of the scheduled Expiration Date (taking such representations and warranties with the same effect as if made on and as of such scheduled Expiration Date and without giving effect to any "material," "Company Material Adverse Effect" or similar qualifications), except for representations and warranties specifically made as of an earlier date, which shall only be required to be true and correct as of such earlier date, and except to the extent that the aggregate of all breaches of the representations and warranties of the Company could not reasonably be expected to have a Company Material Adverse Effect;
(e) the Company shall have failed to perform in any material respect any of its obligations under Section 6.05 material obligation or to comply in any material respect with any agreement or covenant of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), Company to be performed or (iv) complied with by it prior to the Board of Directors of Signal shall have resolved to take any of scheduled Expiration Date under the foregoing actionsAgreement;
(ef) Signalall consents set forth in SECTION 4.7 of the Company Disclosure Letter from Governmental Entities, Purchaser shall not have been obtained and Crane shall be in full force and effect, other than consents the failure to obtain which would not reasonably be expected to have agreed in writing to terminate a Company Material Adverse Effect;
(g) the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Employment Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to timewith ▇▇▇▇▇ ▇.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any tendered Shares tendered pursuant and may terminate or, subject to the Offer terms of the Merger Agreement, amend the Offer, if (i) there shall not have been be validly tendered and not properly withdrawn prior to the expiration of Expiration Date for the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of which satisfies the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)Minimum Condition, (ii) any applicable waiting period (and any extension(s) extensions thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer Expiration Date, or (iii) at any time on or after the date of the Merger Agreement and prior to any the time of acceptance for payment or payment for any Shares pursuant to the OfferShares, any one or more of the following events (each, an "Event") shall have occurredoccur:
(a) there shall be instituted any action taken, or be pending any statute, rule, regulation, legislation, interpretation, judgment, order or injunction enacted, enforced, promulgated, amended, issued or deemed applicable to the Offer, by any person Governmental Authority, directly or Governmental Authority any suitindirectly, action or proceeding that is reasonably likely to prevail (i) challenging the acquisition by Crane or the Purchaser of any shares of capital stock of the Company or the Surviving Corporation, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of the other transactions contemplated by the Merger Agreement or seeking to obtain from the Company or Crane any damages that are material in relation to the Company and its anticipated benefits of the Mergersubsidiaries taken as a whole or Crane and its subsidiaries taken as a whole, as applicable, (ii) seeking to prohibit or materially limit the ownership or operation by Signalthe Company, Crane or any of their respective subsidiaries of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company, Crane or any of their respective subsidiaries, or to compel the Company, Crane and/or its or any of their respective subsidiaries to dispose of or hold separate all or any material portion of the business or assets of the Company, Crane or any of their respective subsidiaries, as a result of the Offer or Offer, the Merger or any of the other transactions contemplated by the Merger Agreement, (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or hold, or exercise full rights of ownership of, any shares of Sharescapital stock of the Company or the Surviving Corporation, including, without limitation, (iv) seeking to prohibit Crane or any of its subsidiaries from effectively controlling in any material respect the right business or operations of the Company or its subsidiaries or (v) which otherwise would reasonably be expected to vote such Shares have a Material Adverse Effect on all matters properly presented to the stockholders of Signal;Company or Crane; or
(b) any statute, rule, regulation, judgment, order or injunction there shall be enacted, entered, enforced, promulgated pending or deemed applicable to the Offer and/or the Merger, threatened any action or any other action shall be taken proceeding by any Governmental Authority seeking, or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in in, any of the consequences described referred to in clauses (i) through (iiiv) of subsection paragraph (a) above or by any third party for which there is a substantial likelihood of resulting in any of the consequences referred to in clauses (i) through (v) of paragraph (a) above;; or
(c) there shall have occurred a any Material Adverse Effect with respect to Signal;the Company and its subsidiaries taken as a whole; or
(i) the Board of Directors of Signal the Company or any committee thereof shall have withdrawn, modified, withdrawn or changed its approval or recommendation in respect of modified (including by amendment to the Merger Agreement, the Merger or the Offer Schedule 14D-9) in a manner adverse to Crane or the Purchaser its approval or recommendation of the Offer or the Merger or the OfferAgreement, or adverse to Crane approved or Purchaserrecommended any Superior Proposal, (ii) the Company shall have entered into an Acquisition Agreement with a party other than Crane on any of its affiliates, or (iii) the Board of Directors of Signal shall have recommended the Company or any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal committee thereof shall have resolved to take do any of the foregoing actions;foregoing; or
(e) Signal, the Company and the Purchaser and Crane shall have agreed in writing to terminate reached an agreement that the OfferOffer or the Merger Agreement be terminated, or the Merger Agreement shall have been terminated in accordance with its terms;; or
(f) any of the representations and warranties of Signal the Company set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) ), as if such representations and warranties were made at the time of any such determination, determination except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, provided that the condition described in this clause paragraph (f) shall be deemed not to have been triggered satisfied so long as the failure of all such representations and warranties so to be true and correct would not (i) have a Material Adverse Effect on Signal or the Company, (ii) prevent or materially delay the consummation of the Offer;, (iii) materially increase the cost of the Offer to the Purchaser or (iv) have a material adverse effect on the benefits to Crane of the transactions contemplated by the Merger Agreement; or
(g) Signal the Company shall have failed to perform in any all material respect any of its respects all obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (xi) any general suspension of, or limitation on prices for, trading in securities on the New York Stock Exchange or on the Nasdaq National Market, (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yiii) a commencement of a war, armed hostilities or other national or international calamity crises involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority governmental Entity on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (ziv) prevents Crane from borrowing money pursuant with respect to its credit facilities any of the foregoing in effect on the date of the Merger Agreement (i.e.Agreement, April 16, 2003)a material worsening or acceleration thereof. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14paragraph) are for the sole benefit of Crane and the Purchaser and may be asserted by Crane or the Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, the Purchaser in whole or in part, part at any time and from time to time in their sole reasonable discretion, in each case, subject to any applicable provisions the terms of the Merger Agreement. The failure by Crane or the 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, right which may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Offer to Purchase (Crane Co /De/)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding Subject to any other provisions applicable rules or regulations of the OfferCommission, Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares tendered pursuant to the Offer, and may postpone the acceptance for payment, or, payment for, Shares tendered pursuant to the Offer, and may terminate the Offer (whether or not any Shares have theretofore been purchased or paid for) to the extent permitted by the Tender Offer Agreement if (i) there at the expiration of the Offer, the Minimum Condition shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser satisfied or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) at any applicable time prior to acceptance for payment for any such Shares any of following conditions (each referred to as an "Event") occurs or has occurred and continues to exist (each of paragraphs (a) through (i) providing a separate and independent condition to Purchaser's obligations pursuant to the Offer):
(a) any waiting period (and any extension(s) thereof) periods under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more of the following events shall have occurred:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signalterminated;
(b) there shall be in effect any judgment, order, decree, statute, rulelaw, regulationordinance, judgmentrule or regulation entered, order or injunction shall be enacted, enteredpromulgated, enforced, promulgated enforced or deemed applicable to the Offer and/or the Merger, or any other action shall be taken issued by any Governmental Authority court or court, other than governmental entity of competent jurisdiction or other legal restraint or prohibition preventing Purchaser from acquiring the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) aboveIdentified Stockholders Shares;
(c) there shall have occurred a Material Adverse Effect be in effect any action or proceeding instituted by, any governmental authority seeking to prevent Purchaser from acquiring the Identified Stockholders Shares or seeking material damages in connection with respect the transactions contemplated by the Tender Offer Agreement which continues to Signalbe outstanding;
(id) the Board of Directors of Signal there shall have withdrawn, modified, been instituted against the Company or changed its approval Purchaser any action or recommendation in respect of proceeding (judicial or otherwise) that seeks to enjoin or delay the Merger Agreement, Purchaser from acquiring the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actionsIdentified Stockholders Shares;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate any representation or warranty of the Offer, Company or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal Identified Stockholders set forth in the Merger Tender Offer Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) material respect in each case as if such representations and warranties representation or warranty were made at the time of such determination (except for any such determination, except to the extent such representations and or warranties expressly relate to an earlier date (in which case by their terms are given as of such a specified date); provided, that the condition described in this clause ;
(f) the Company or any Identified Stockholder shall be deemed not fail to have been triggered so long as the failure of all such representations and warranties so perform or comply in any material respect with any covenant or agreement to be true and correct would not have a Material Adverse Effect on Signal performed or prevent complied with by it or materially delay identified to be performed or complied with by it prior to the consummation of the Offer;
(g) Signal any necessary consents and approvals of any federal, state or local governmental authority or any other third party required for the consummation by Purchaser, Company or any Identified Stockholder of the transactions contemplated by the Tender Offer Agreement shall not have been obtained;
(h) except as described in "Covenants Relating to the Conduct of Business", there shall have failed to perform occurred any Material Adverse Effect, in any material respect the general affairs, business, management, operations, assets and liabilities or prospects of the Company and its subsidiaries taken as a whole or in the condition (financial or otherwise) of the Company or any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breachsubsidiaries; or
(hi) there the Tender Offer Agreement shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments been terminated in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States oraccordance with its terms which, in the case reasonable judgment of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant Purchaser with respect to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) each and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane every matter referred to above and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer or with such acceptance for payment of or payment for Shares. The foregoing conditions are for the sole benefit of Purchaser and (i) may be asserted by Purchaser regardless of the circumstances giving rise to such condition (except for any action or inaction by Purchaser or any of its affiliates constituting a breach of the Tender Offer Agreement) or (ii) may be waived by Crane or Purchaser, by express and specific action to that effect, Purchaser in whole or in part, at any time and or in part from time to time in their sole its reasonable discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which right and may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Tender Offer Agreement (Gilat Satellite Networks LTD)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares Shares, may postpone the acceptance for payment of or pay for tendered pursuant to Shares, and may, in its sole discretion, terminate or amend the Offer as to any Shares not then paid for if (i) there shall not have been validly tendered and not withdrawn prior to at the expiration of the Offer that number of Shares whichOffering Period, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority the Majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), Minority Condition has not been satisfied; (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to at the expiration of the Offer or Offering Period, the Minimum Tender Condition has not been satisfied; (iii) at any time on unless waived by Purchaser, the Special Committee of independent members of Judge Group's board of directors has withdrawn or after amended its recommendation that Judge Group's shareholders accept the date of the Merger Agreement Offer and prior to any acceptance for payment or payment for any tender their Shares pursuant to the Offer; or (iv) at or prior to the time of the expiration of the Offer, any one or more of the following events shall have occurredoccur:
(a) there a. Any preliminary or permanent judgment, order, decree, ruling, injunction, action, proceeding or application shall be instituted pending or be pending by threatened before any person court, government or Governmental Authority any suitgovernmental authority or other regulatory or administrative agency or commission, action domestic or proceeding that is reasonably likely to prevail (i) challenging foreign, which would or seeking to restrain might restrain, prohibit or prohibit the making delay consummation of, or consummation of materially alter or otherwise materially affect, the Offer or the Merger or to substantially deprive Crane of any of its anticipated materially impair the contemplated benefits of the Offer or the Merger; or that would reasonably be expected to, directly or indirectly:
(i) Make illegal or otherwise prohibit consummation of the Offer;
(ii) seeking to prohibit Prohibit or materially limit the ownership or operation by Signal, Crane Purchaser of all or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or Judge Group;
(iii) seeking to impose Impose material limitations on the ability of Crane or Purchaser to acquire effect the Merger or to effectively acquire, hold or exercise full rights of ownership of Sharesshares, including, without limitation, including the right to vote such any Shares acquired by Purchaser pursuant to the Offer on all matters properly presented to the stockholders of SignalJudge Group's shareholders;
(biv) Required divestiture by Continuing Shareholders or Purchaser of any Shares; or
b. Any statute, including without limitation any state anti-takeover statute, rule, regulation, judgment, regulation or order or injunction shall be sought, proposed, enacted, promulgated, entered, enforced, promulgated enforced or deemed or become applicable or asserted to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application applicable to the Offer or the Merger, which would or might restrain, prohibit or delay consummation of, or materially alter or otherwise materially affect, the Offer or the Merger or materially impair the contemplated benefits of applicable waiting periods under the HSR Act, Offer or the Merger; or that is would reasonably likely by expected to result, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iii) of subsection paragraph (a) above;; or
c. Any change (cor any condition, event or development involving a prospective change) there shall have occurred or be threatened that has or might have a Material Adverse Effect with respect to Signal;materially adverse effect on the business, properties, assets, liabilities, capitalization, shareholders' equity, financial condition, operations, results of operations or prospects of Judge Group or any of its subsidiaries; or
d. There shall have occurred (i) the Board of Directors of Signal shall have withdrawn, modifiedany general suspension of, or changed its approval limitation on times or recommendation prices for, trading in respect of securities on any national securities exchange or in the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaserover-the-counter market, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yiii) a commencement the outbreak or escalation of a warwar (whether or not declared), acts of terrorism, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States, (iv) any limitation (whether or not mandatory) by any governmental authority on, or any other event which might affect the extension of credit by banks or other lending institutions, (v) a suspension of or limitation (whether or not mandatory) on the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws in the United States or, or (vi) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof; or
e. Any tender or acceleration thereofexchange offer with respect to some or all of the outstanding Shares of common stock of Judge Group (other than the Offer), or a merger, acquisition or other business combination proposal for Judge Group (z) a material limitation (whether other than the Offer and the Merger), shall have been proposed, announced or not mandatory) made by any Governmental Authority on person, entity or group; or
f. There shall have occurred or be in existence any other event, circumstance or condition, which, in the extension reasonable judgment of credit by banks or other lending institutionsPurchaser, would prevent Purchaser from effecting the Merger following the completion of the Offer; or
g. Any event which in the case reasonable judgment of clauses (x), (y) Purchaser with respect to each and every matter referred to above makes it inadvisable to proceed with the Offer or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on with the date of the Merger Agreement (i.e., April 16, 2003)Merger. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Purchaser and Purchaser Continuing Shareholders and may be asserted by Crane or Purchaser regardless of the circumstances (including any action or inaction by Purchaser or Continuing Shareholders) giving rise to any such conditions and or may be waived by Crane or Purchaser, by express and specific action to that effectPurchaser in its reasonable discretion, in whole or in part, part at any time and from time to time in their sole discretion, in each case, subject prior to the expiration of the Offer. Any reasonable determination by Purchaser with respect to any applicable provisions of the Merger Agreementforegoing conditions (including without limitation, the satisfaction of such conditions) shall be final and binding on all parties. The failure by Crane or 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, right which may be asserted at any time and from time to time. NOTWITHSTANDING THE FOREGOING, PURCHASER SHALL NOT PURCHASE SHARES IN THE OFFER UNLESS (I) THE MAJORITY OF THE MINORITY CONDITION IS SATISFIED; (II) THE MINIMUM TENDER CONDITION IS SATISFIED AND (III) THE SPECIAL COMMITTEE HAS NOT MODIFIED OR WITHDRAWN ITS RECOMMENDATION TO SHAREHOLDERS TENDER THEIRS SHARES IN THE OFFER. IN NO EVENT SHALL PURCHASER WAIVE THE MAJORITY OF THE MINORITY CONDITION OR THE MINIMUM TENDER CONDITION. A public announcement shall be made of a material change in, or waiver of, such conditions, and the Offer may, in certain circumstances, be extended in connection with any such change or waiver. All Offer Conditions must be satisfied or waived prior to the commencement of any Subsequent Offering Period.
Appears in 1 contract
Sources: Offer to Purchase (Judge Group Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after expiration or termination of the Offer), to pay for any Shares tendered pursuant tendered, and, except as otherwise provided in the Merger Agreement, may postpone the acceptance for payment or, subject to the restriction referred to above, payment for any Shares tendered, and may amend or terminate the Offer (whether or not any Shares have theretofore been purchased or paid for) if (i) there prior to the Expiration Date (a) the Minimum Condition or the Financing Condition shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)satisfied, (iib) any the applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior or (c) all regulatory and related approvals shall have not been obtained on terms reasonably satisfactory to Parent, except where the expiration failure to obtain such approval would not have a Company Material Adverse Effect and would not materially restrict or prohibit consummation of the Offer or the Merger or (iiiii) prior to the acceptance for payment of or payment for Shares and at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the OfferAgreement, any one or more of the following events conditions shall have occurredoccurred and be continuing:
(a) there Any Governmental Entity or federal or state court of competent jurisdiction shall be instituted have enacted, issued, promulgated, entered or be pending by enforced any person statute, rule, executive order, regulation, decree, injunction or Governmental Authority any suitother order (whether temporary, action preliminary or proceeding that permanent) which is reasonably likely to prevail in effect and which (i1) challenging materially restricts or seeking to restrain or prohibit the making or prohibits consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii2) seeking to prohibit prohibits or limits materially limit the ownership or operation by Signalthe Company, Crane Parent or any of their respective subsidiaries of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or the Company and its subsidiaries taken a whole, or compels the Company, Parent, or any of their subsidiaries to dispose of or hold separate all or any material portion of the business or assets of the Company and its subsidiaries taken as a result of the Offer or the Merger or whole, (iii3) seeking to impose material imposes limitations on the ability of Crane Parent, the Purchaser or Purchaser any other subsidiary of Parent to acquire or exercise full rights of ownership of any Shares, including, without limitation, the right to vote such any Shares acquired by the Purchaser pursuant to the Offer or otherwise on all matters properly presented to the stockholders of Signal;
(b) any statuteCompany's stockholders, ruleincluding, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreementwithout limitation, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 approval and adoption of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) and the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.transactions contemplated thereby,
Appears in 1 contract
Sources: Tender Offer Statement
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, the Merger Agreement provides that Purchaser shall not be required to accept for payment oror pay for any tendered Shares and, subject to any applicable rules and regulations the terms of the SECMerger Agreement, including Rule 14e-1(cmay delay the acceptance for payment of any tendered Shares, (A) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer if unless (i) there shall not have been validly tendered and not withdrawn prior to the expiration of date for the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents which represent at least a majority of the then total issued and outstanding Shares (assumingon a fully diluted basis, for this purpose, after giving effect to the exercise or conversion of all options to options, warrants, rights and securities outstanding exercisable or convertible into voting securities, on the date of purchase shares of Common Stock that have a per share exercise price of less than $13.25(the "Minimum Condition"), (ii) any applicable waiting period (and any extension(s) thereof) periods under the HSR Act shall not have expired or been terminated prior to (the expiration "HSR Condition"), (iii) all consents of, or notices to, governmental entities necessary for the consummation of the Offer and the other transactions contemplated by the Merger Agreement shall have been obtained or made, other than those which, if not obtained or made, would not in the aggregate reasonably be expected to have a Material Adverse Effect on the Company or (iiiB) if at any time on or after the date of the Merger Agreement February 22, 2001 and prior to any the time of acceptance for payment or payment for any Shares pursuant to the Offertendered Shares, any one or more of the following events (each, an "Event") shall have occurredoccurred and be continuing:
(a) there any statute, rule, regulation, legislation, interpretation, order, judgment or injunction shall be instituted enacted, entered, enforced, promulgated, amended or be pending issued by any person legislative body, court, government or Governmental Authority any suitgovernmental, action administrative or proceeding that is reasonably likely to prevail regulatory authority or agency, domestic or foreign (other than the waiting period provisions of the HSR Act), which shall remain in effect and which shall have the effect of (i) challenging making illegal or seeking to restrain restraining or prohibit prohibiting the making of the Offer, the acceptance for payment of, or payment for, the Shares by Parent or Purchaser, or the consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit prohibiting or materially limit limiting the ownership or operation by Signal, Crane Parent or any Purchaser of their respective subsidiaries of all or a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company or Crane and/or any of its subsidiaries subsidiaries, taken as a result whole, or compelling Parent or Purchaser to dispose of or hold separately all or a material portion of the Offer business or assets of Parent or Purchaser or the Merger Company or any of its subsidiaries, or seeking to impose any material limitation on the ability of Parent or Purchaser to conduct its business or own such assets, (iii) seeking to impose imposing material limitations on the ability of Crane Parent or Purchaser to acquire effectively acquire, hold or exercise full rights of ownership of the Shares, including, without limitation, the right to vote such any Shares acquired or owned by Purchaser or Parent on all matters properly presented to the stockholders Company's shareholders or effectively to control in any material respect the business, assets or operations of Signal;the Company or any of its subsidiaries, or (iv) not permitting or allowing Parent to own all of the Company's issued and outstanding Shares,
(b) any statute, rule, regulation, judgment, order or injunction there shall be enactedinstituted, entered, enforced, promulgated pending or deemed applicable to the Offer and/or the Mergerthreatened any action or proceeding by any governmental entity seeking, or any other action shall that could reasonably be taken by any Governmental Authority or courtexpected to result in, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described referred to in clauses (i) through (iiiiv) of subsection paragraph (a) above;, or
(c) there any change shall have occurred (or any development shall have occurred involving prospective changes) in the business, results of operations or financial condition of the Company or any of its subsidiaries that has, or could reasonably be expected to have, a Material Adverse Effect with respect to Signal;on the Company, or
(d) (i) the Company Board of Directors of Signal or any committee thereof shall have withdrawn, modified, withdrawn or changed its approval or recommendation in respect modified (including by amendment of the Merger Agreement, the Merger or the Offer Schedule 14D-9) in a manner adverse to the Merger Parent or Purchaser its approval or recommendation of the Offer, the Merger Agreement or adverse the Merger, shall have approved or recommended an Acquisition Proposal, or shall have resolved to Crane or Purchaser, effect any of the foregoing; (ii) the Board Company or any of Directors of Signal its subsidiaries shall have recommended entered into an Acquisition Agreement obligating the Company or any Competing Transactionof its subsidiaries to engage in a transaction with a person other than Parent, Purchaser or an affiliate of either, or the Company shall have consummated such a transaction; or (iii) Signal the Company Board shall have violated failed to publicly reaffirm its approval or breached in any material respect any recommendation of its obligations under Section 6.05 of the Offer, the Merger Agreement (regarding, among other things, solicitation of Competing Transactions)or the Merger, or (iv) the Board of Directors of Signal shall have resolved failed to take any reaffirm its determination that the Offer, the Merger Agreement and the Merger are in the best interests of the foregoing actions;Company's shareholders, within ten (10) business days after Parent requests in writing that such recommendation or determination be reaffirmed, or
(e) Signal, the Company and Purchaser and Crane Parent shall have agreed in writing to terminate reached an agreement that the OfferOffer or the Merger Agreement be terminated, or the Merger Agreement shall have been terminated in accordance with its terms;, or
(f) (i) any of the representations and warranties of Signal the Company set forth in Section 4.01 (organization and qualification), Section 4.03 (capitalization) or Section 4.04 (authority relative to agreement) of the Merger Agreement shall not be true and correct in all material respects on and as of the Expiration Date, or (ii) the other representations and warranties of the Company set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determinationcorrect, except to in the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (fii) shall be deemed not to have been triggered so long as where the failure of all such representations and warranties so to be true and correct (without giving effect to any materiality or similar qualifications) would not not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Signal or prevent or materially delay the consummation Company, on and as of the Offer;Expiration Date, as if any such representation and warranty were made on and as of the Expiration Date (except as to any such representation or warranty which speaks only as of a specific date, which must be untrue or incorrect as of such specific date), or
(g) Signal the Company shall have failed to perform or to comply in any all material respect any of respects with its obligations obligations, covenants or agreements required to be performed by it under the Merger Agreement at or prior to consummation of the OfferExpiration Date, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurredoccurred (i) any general suspension of, and continued to existor limitation on prices for, trading in securities on the New York Stock Exchange, (xii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yiii) a commencement of a war, armed hostilities or other national or international calamity crisis directly involving the United States or(other than an action involving United Nations' personnel or support of United Nations' personnel), (iv) a material limitation by any Governmental Entity on the extension of credit by banks or other lending institutions or (v) in the case of any of the foregoing occurrences clauses (i) through (iv) existing on or at the time of the commencement of the Offer, a material acceleration or worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) Tender Offer Conditions are for the sole benefit of Crane Parent and Purchaser and may be asserted by Crane Purchaser, Parent or Purchaser may assert the failure of any of the Tender Offer Conditions regardless of the circumstances (other than any circumstances arising solely by any action or inaction by Parent or Purchaser) giving rise to any such conditions failure, the Company shall not assert the failure of, or waive, any such condition without the prior written consent of Parent and may be waived by Crane or Purchaser, by express and specific action if Parent or Purchaser elects to that effect, waive any such condition to the Offer (which Parent or Purchaser may do in whole or in part, part at any time and from time to time in their sole discretiontime), in each case, subject to any applicable provisions of the Merger AgreementCompany shall cooperate and comply with such election. The failure by Crane Parent or 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, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions term or provision of the Offer, the Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c14e-l(c) promulgated under the Exchange ActAct (relating to a bidder's obligation to pay for or return tendered securities promptly after the termination or withdrawal of such bidder's offer), to pay for any Shares tendered not theretofore accepted for payment or paid for unless the following conditions have been satisfied, among others, (1) the Minimum Tender Condition, (2) the Business Combination Condition, (3) the Poison Pill/Anti-Dilution Condition, (4) the Financing Condition, and (5) any waiting period under the HSR Act applicable to the purchase of Shares pursuant to the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration terminated. Furthermore, notwithstanding any other term or provision of the Offer, the Purchaser will not be required to accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate or amend the Offer or (iii) if, at any time on or after Wednesday, December 8, 1999, and before the date acceptance of the Merger Agreement and prior to any acceptance such Shares for payment or the payment for any Shares pursuant to the Offertherefor, any one or more of the following events or facts shall have occurred:
(a) there shall be threatened, instituted or be pending any action, proceeding, application or counterclaim by any person government or governmental, regulatory or administrative authority or agency, domestic, foreign or supranational (each, a "Governmental Entity"), or by any other person, domestic or foreign, before any court or Governmental Authority any suitEntity, action or proceeding that is reasonably likely to prevail (i) (A) challenging or seeking to to, or which is reasonably likely to, make illegal, delay or otherwise directly or indirectly restrain or prohibit prohibit, or seeking to or which is reasonably likely to, impose voting, procedural, price or other requirements in connection with, the making of the Offer, the acceptance for payment of, or payment for, some of or all the Shares by the Purchaser, or any other affiliate of the Purchaser or the consummation by the Purchaser, or any other affiliate of the Purchaser of a merger or other similar business combination with the Company, (B) seeking to obtain material damages, or (C) otherwise directly or indirectly relating to the transactions contemplated by the Offer or any merger or business combination between the Merger Purchaser or to substantially deprive Crane of any of its anticipated benefits of affiliates on the Mergerone hand and the Company and its affiliates on the other hand, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane the Purchaser or any of their respective subsidiaries of a material portion other affiliate of the business, operations Purchaser of all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or the Company and its subsidiaries as a result or of the Offer Purchaser or any other affiliate of the Purchaser or to compel the Purchaser or any other affiliate of the Purchaser or the Merger Company or any subsidiary thereof to dispose of or hold separate all or any portion of the business or assets of the Company or any of its subsidiaries or of the Purchaser or any other affiliate of the Purchaser or the Company or any subsidiary thereof or seeking to impose any limitations on the ability of the Purchaser or any other affiliate of the Purchaser to conduct such business or own such assets, (iii) seeking to impose material limitations or confirm limitation on the ability of Crane the Purchaser or any other affiliate of the Purchaser effectively to acquire or exercise full rights of ownership of the Shares, including, without limitation, the right to vote such any Shares acquired or owned by the Purchaser or any other affiliate of the Purchaser on all matters properly presented to the stockholders Company's shareholders, (iv) seeking to require divestiture by the Purchaser or any other affiliate of Signalthe Purchaser of any Shares, (v) seeking any material diminution in the benefits expected to be derived by the Purchaser or any other affiliate of the Purchaser as a result of the transactions contemplated by the Offer or any merger or other similar business combination with the Company, (vi) otherwise directly or indirectly relating to the Offer or which otherwise, in the sole judgment of the Purchaser, might materially adversely affect the Company or any of its subsidiaries or the Purchaser or any other affiliate of the Purchaser or the value of the Shares, or (vii) in the sole judgment of the Purchaser, materially adversely affecting the business, properties, assets, liabilities, capitalization, shareholders' equity, condition (financial or otherwise), operations, licenses or franchises, results of operations or prospects of the Company or any of its subsidiaries;
(b) there shall be any action taken or any statute, rule, regulation, legislation, interpretation, judgment, order or injunction shall be proposed, enacted, entered, enforced, promulgated promulgated, amended, issued or deemed applicable to (i) the Offer and/or the Merger, Purchaser or any other action shall be taken affiliate of the Purchaser or the Company or any of its subsidiaries or (ii) the Offer or any merger or other similar business combination by the Purchaser or any other affiliate of the Purchaser with the Company, by any Governmental Authority government, legislative body or court, domestic, foreign or supranational, or Governmental Entity, other than the routine application of the waiting period provisions of the HSR Act to the Offer or Offer, that, in the Merger sole judgment of applicable waiting periods under the HSR ActPurchaser, that is reasonably likely to resultmight, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iiivii) of subsection paragraph (a) above;
(c) any change shall have occurred or been threatened (or any condition, event or development shall have occurred or been threatened involving a prospective change) in the business, properties, assets, liabilities, capitalization, shareholders' equity, condition (financial or otherwise), operations, licenses or franchises, results of operations or prospects of the Company or any of its subsidiaries that, in the sole judgment of the Purchaser, is or may be materially adverse to the Company or any of its subsidiaries, or the Purchaser shall have become aware of any facts that, in the sole judgment of the Purchaser, have or may have material adverse significance with respect to either the value of the Company or any of its subsidiaries or the value of the Shares to the Purchaser or any other affiliate of the Purchaser;
(d) there shall have occurred a Material Adverse Effect with respect to Signal;
or been threatened (i) the Board any general suspension of Directors of Signal shall have withdrawn, modifiedtrading in, or changed its approval limitation on prices for, securities on any national securities exchange or recommendation in respect of the Merger Agreement, over-the-counter market in the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or PurchaserUnited States, (ii) any extraordinary or material adverse change in the Board financial markets or major stock exchange indices in the United States or abroad or in the market price of Directors of Signal shall have recommended any Competing TransactionShares, (iii) Signal shall have violated any change in the general political, market, economic or breached financial conditions in any material respect any of its obligations under Section 6.05 the United States or abroad, including but not limited to changes resulting from the so called Y2K or Year 2000 problem, that could, in the sole judgment of the Merger Agreement Purchaser, have a material adverse effect upon the business, properties, assets, liabilities, capitalization, shareholders' equity, condition (regarding, among other things, solicitation of Competing Transactionsfinancial or otherwise), operations, licenses or franchises, results of operations or prospects of the Company, Stockwalk or their respective subsidiaries or the trading in, or value of, the Shares, (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed material change in writing to terminate the OfferUnited States currency exchange rates or any other currency exchange rates or a suspension of, or limitation on, the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to existmarkets therefor, (xv) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yvi) any limitation (whether or not mandatory) by any government, domestic, foreign or supranational, or Governmental Entity on, or other event that, in the sole judgment of the Purchaser, might affect, the extension of credit by banks or other lending institutions, (vii) a commencement of a war, war or armed hostilities or other national or international calamity directly or indirectly involving the United States or, or (viii) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof;
(e) the Company or acceleration thereofany of its subsidiaries shall have (i) split, combined or otherwise changed, or authorized or proposed a split, combination or other change of, the Shares or its capitalization, (ii) acquired or otherwise caused a reduction in the number of, or authorized or proposed the acquisition or other reduction in the number of, outstanding Shares or other securities (other than as aforesaid), (iii) issued or sold, or authorized or proposed the issuance, distribution or sale of, additional Shares (other than the issuance of Shares under option as publicly disclosed prior to December 31, 1998) other class of capital stock, other voting securities or any securities convertible into, or rights, warrants or options, conditional or otherwise, to acquire, any of the foregoing, (iv) declared or paid, or proposed to declare or pay, any dividend or other distribution, whether payable in cash, securities or other property, on or with respect to any shares of capital stock of the Company, (v) altered or proposed to alter any material term of any outstanding security other than to satisfy the Business Combination Condition with respect to the Purchaser as described herein, (vi) incurred any debt other than in the ordinary course of business or any debt containing burdensome covenants, (vii) authorized, recommended, proposed or entered into, an agreement with respect to any merger, consolidation, liquidation, dissolution, business combination, acquisition of assets, disposition of assets, release or relinquishment of any material contractual or other right of the Company or any of its subsidiaries or any comparable event not in the ordinary course of business, (viii) authorized, recommended, proposed or entered into, or announced its intention to authorize, recommend, propose or enter into, any agreement or arrangement with any person or group that in the sole judgment of the Purchaser could adversely affect either the value of the Company or any of its subsidiaries or the value of the Shares to the Purchaser or any other affiliate of the Purchaser, (ix) entered into any employment, severance or similar agreement, arrangement or plan with or for the benefit of any of its employees other than in the ordinary course of business or entered into or amended any agreements, arrangements or plans so as to provide for increased or accelerated benefits to the employees as a result of or in connection with the transactions contemplated by the Offer, (x) except as may be required by law, taken any action to terminate or amend any employee benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended) of the Company or any of its subsidiaries, or the Purchaser shall have become aware of any such action that was not disclosed in publicly available filings prior to December 8, 1999, or (zxi) amended, or authorized or proposed any amendment to, its articles of incorporation or its by-laws (other than any amendment effected as a result of the adoption of the Proposals), or the Purchaser shall become aware that the Company or any of its subsidiaries shall have proposed or adopted any such amendment that was not disclosed in publicly available filings prior to December 8, 1999;
(f) a material limitation (whether tender or not mandatory) exchange offer for any Shares shall have been made or publicly proposed to be made by any Governmental Authority other person (including the Company or any of its subsidiaries or affiliates), or it shall have been publicly disclosed or the Purchaser shall have otherwise learned that (i) any person, entity (including the Company or any of its subsidiaries) or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) shall have acquired or proposed to acquire beneficial ownership of more than 5% of any class or series of capital stock of the Company (including the Shares), through the acquisition of stock, the formation of a group or otherwise, or shall have been granted any right, option or warrant, conditional or otherwise, to acquire beneficial ownership of more than 5% of any class or series of capital stock of the Company (including the Shares), other than acquisitions for bona fide arbitrage purposes only and other than as disclosed in a Schedule 13G on file with the extension Commission prior to December 8, 1999, (ii) any such person, entity or group that prior to December 8, 1999, had filed such a Schedule with the Commission has acquired or proposes to acquire, through the acquisition of credit by banks stock, the formation of a group or other lending institutionsotherwise, which in beneficial ownership of 1% or more of any class or series of capital stock of the case Company (including the Shares), or shall have been granted any right, option or warrant, conditional or otherwise, to acquire beneficial ownership of clauses 1% or more of any class or series of capital stock of the Company (xincluding the Shares), (yiii) any person or group shall have entered into a definitive agreement or an agreement in principle or made a proposal with respect to a tender offer or exchange offer or a merger, consolidation or other business combination with or involving the Company or (iv) any person shall have filed a Notification and Report Form under the HSR Act (or amended a prior filing to increase the applicable filing threshold set forth therein) or (z) prevents Crane from borrowing money pursuant made a public announcement reflecting an intent to its credit facilities in effect on acquire the date Company or any assets or subsidiaries of the Merger Agreement Company;
(i.e.g) any approval, April 16permit, 2003authorization, favorable review or consent of any Governmental Entity (including those described or referred to in Section 15) shall not have been obtained on terms satisfactory to the Purchaser in its sole discretion;
(h) the Purchaser shall become aware (i) that any material contractual right of the Company or any of its subsidiaries shall be impaired or otherwise adversely affected as a result of the transactions contemplated by the Offer, or (ii) of any covenant, term or condition in any of the Company's or any of its subsidiaries' instruments or agreements that are or may be materially adverse to the value of the Shares in the hands of the Purchaser or any other affiliate of the Purchaser (including, without limitation, any event of default that may ensue as a result of the consummation of the Offer, or any other business combination or the acquisition of control of the Company); or
(i) the Purchaser shall have reached an agreement or understanding with the Company providing for termination of the Offer, or the Purchaser or any other affiliate of the Purchaser shall have entered into a definitive agreement or announced an agreement in principle with the Company providing for a merger or other business combination with the Company or the purchase of stock or assets of the Company; which, in the sole judgment of the Purchaser in any such case, and regardless of the circumstances (including any action or inaction by the Purchaser or any other affiliate of the Purchaser) giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payment. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and the Purchaser and may be maybe asserted by Crane or the Purchaser regardless of the circumstances giving rise to any such conditions and condition or may be waived by Crane or Purchaser, by express and specific action to that effect, the Purchaser in whole or in part, part at any time and from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or the Purchaser at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right and each right, the waiver of any such right shall with respect to particular facts and circumstances will not be deemed an ongoing right, which A public announcement may be asserted at made of a material change in, or waiver of, such conditions and the Offer may, in certain circumstances, be extended in connection with any time such change or waiver. The Purchaser acknowledges that the Commission believes that (a) if the Purchaser is delayed in accepting the Shares it must either extend the Offer or terminate the Offer and from time promptly return the Shares and (b) the circumstances in which a delay in payment is permitted are limited and do not include unsatisfied conditions of the Offer, except with respect to timeany approval required under the HSR Act and most other regulatory approvals.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 11, capitalized terms used but not defined herein shall have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for any Shares tendered pursuant payment of or, subject to the restriction referred to above, the payment for, any tendered Shares, and, subject to the terms of the Merger Agreement, may amend the Offer if (i) there shall not have been validly tendered or terminate the Offer and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to accept for payment any tendered Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the OfferExpiration Date, any one or more of the following events shall have occurredoccur:
(a) there shall be instituted any statute, rule, regulation, judgment, order or be pending by any person injunction enacted, entered, enforced, promulgated or Governmental Authority deemed applicable to the Offer or the Merger, or any suit, action or proceeding that is reasonably likely to prevail shall be taken by any Governmental Entity (i) challenging seeking to prohibit or impose any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a material portion of their or the Company's businesses or assets, (ii) seeking to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company or Parent and their respective subsidiaries, in each case taken as a whole, (iii) seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane the performance of any of its anticipated benefits of the Mergerother Transactions, (iiiv) seeking to prohibit or materially limit obtain from the ownership or operation by SignalCompany any damages that would be reasonably likely to have a Material Adverse Effect on the Company, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iiiv) seeking to impose material limitations on the ability of Crane Purchaser, or rendering Purchaser unable, to acquire accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, (vi) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote such the Shares purchased by it on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the MergerCompany's stockholders, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that (vii) which otherwise is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation Company or, as a result of the Offer;
(g) Signal shall have failed to perform in any material respect any of Transactions, Parent and its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breachSubsidiaries; or
(hb) there shall have occurredoccurred (1) any general suspension of trading in, and continued or limitation on prices for, securities on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market System, for a period in excess of twenty-four hours (excluding suspensions or limitations resulting solely from physical damage or interference with such exchanges not related to existmarket conditions), (x2) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates (whether or not mandatory), (y3) a the commencement of a war, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States, (4) any limitation or proposed limitation (whether or not mandatory) by any United States orgovernmental authority or agency that has a material adverse effect generally on the extension of credit by banks or other financial institutions, (5) any change in general financial bank or capital market conditions which has a material adverse effect on the ability of financial institutions in the United States to extend credit or syndicate loans, (6) any decline in either the Dow ▇▇▇▇▇ Industrial Average or the Standard & Poor's Index of 500 Industrial Companies by an amount in excess of 25% measured from the close of business on the date of this Agreement or (7) in the case of any of the foregoing occurrences situations in clauses (1) through (5) inclusive, existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof; or
(c) the representations and warranties of the Company set forth in the Merger Agreement shall not be true and accurate as of the date of consummation of the Offer as though made on or acceleration thereofas of such date (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and accurate as of such date or with respect to such period) or the Company shall have breached or failed to perform or comply with any obligation, agreement or covenant required by the Merger Agreement to be performed or complied with by it except, in each case where the failure of such representations and warranties to be true and accurate (without giving effect to any limitation as to "materiality" or "material adverse effect" set forth therein), or the failure to perform or comply with such obligations, agreements or covenants, do not, individually or in the aggregate, have a Material Adverse Effect on the Company or a materially adverse effect on the ability to consummate the Offer or the Merger; or
(d) the Company's Board of Directors or the Special Committee (i) shall have withdrawn, or modified or changed in a manner adverse to Parent or Purchaser (including by amendment of the Schedule 14D-9) its recommendation of the Offer, the Merger Agreement, or the Merger, (ii) shall have recommended an Acquisition Proposal, (iii) shall have adopted any resolution to effect any of the foregoing, or (ziv) a material limitation upon request of Purchaser, shall fail to reaffirm its approval or recommendation of the Offer, the Merger Agreement, or the Merger; or
(whether or not mandatorye) by any Governmental Authority on the extension of credit by banks or other lending institutions, Merger Agreement shall have been terminated in accordance with its terms which in the case reasonable judgment of clauses (x)Parent or Purchaser, (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date any such case, and regardless of the Merger Agreement circumstances (i.e., April 16, 2003)including any action or inaction by Parent or Purchaser) giving rise to such condition makes it inadvisable to proceed with the Offer and/or with such acceptance for payment of or payments for Shares. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Parent of Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretiontime, in each case, subject to any applicable provisions the sole discretion of the Merger AgreementParent of Purchaser. The failure by Crane Parent or 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, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and subject to any such rules or regulations, may delay the acceptance for payment of any tendered Shares and (except as provided in the Merger Agreement) amend or terminate the Offer (whether or not any Shares tendered have been theretofore purchased or paid for pursuant to the Offer if Offer) (i) unless the following conditions shall have been satisfied:
(a) there shall not have been be validly tendered and not withdrawn prior to the expiration of the Offer that Expiration Date a number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, which represents at least a majority of the then total issued voting power of the outstanding securities of the Company entitled to vote in the election of directors or in a merger ("Voting Securities") calculated on a fully diluted basis (the "Minimum Condition") ("on a fully diluted basis" having the following meaning as of any date: the number of Voting Securities outstanding, together with Voting Securities issuable pursuant to obligations outstanding at that date under employee stock option or other benefit plans or otherwise) and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (iib) any applicable waiting period (and any extension(s) thereof) under the HSR Act and similar German laws (see Section 15) shall not have expired or been terminated prior to the expiration of the Offer Expiration Date or (iiiii) if at any time on or after the date of the Merger Agreement and prior to before the time of payment for any acceptance such Shares (whether or not any Shares have theretofore been accepted for payment or payment paid for any Shares pursuant to the Offer), any one or more of the following events shall have occurred:
occur and be continuing: (a) there shall be instituted in effect an injunction or be pending other order, decree, judgment or ruling by any person or a Governmental Authority of competent jurisdiction or a law shall have been promulgated, enacted, taken or threatened by a Governmental Authority of competent jurisdiction which in any suit, action such case (1) restrains or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit prohibits the making or consummation of the Offer or Offer, the consummation of the Merger or to substantially deprive Crane of any of its anticipated benefits of the Mergertransactions contemplated by the Stockholders Agreement, (ii2) seeking to prohibit prohibits or materially limit restricts the ownership or operation by Signal, Crane Parent (or any of their respective subsidiaries its affiliates or subsidiaries) of a material any portion of its or the business, operations Company's business or assets which is material to the business of Signal all such entities taken as a whole, or Crane and/or compels Parent (or any of its subsidiaries affiliates or to compel Signal or Crane subsidiaries) to dispose of or hold separate any material portion of its or the Company's business or assets which is material to the business of Signal or Crane and/or its subsidiaries all such entities taken as a result of the Offer or the Merger or whole, (iii3) seeking to impose imposes material limitations on the ability of Crane or Purchaser effectively to acquire or to hold or to exercise full rights of ownership of the Shares, including, without limitation, the right to vote such the Shares purchased by Purchaser on all matters properly presented to the stockholders Stockholders, or (4) imposes any material limitations on the ability of Signal;
Parent or any of its affiliates or subsidiaries effectively to control in any material respect the business and operations of the Company; (b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority shall have instituted any action, suit or court, other than the application proceeding seeking any relief or remedy referred to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection paragraph (a) above;
(c) there shall have occurred or material damages as a Material Adverse Effect with respect to Signal;
(i) the Board result of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect any of the Merger Agreement, the Merger Stockholders Agreement or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, any transactions contemplated thereby; (iic) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated by the Company or Parent in accordance with its terms;
(f) terms or any of event shall have occurred which gives Parent or Purchaser the representations and warranties of Signal set forth in right to terminate the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as consummate the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to SignalMerger; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurredoccurred any event that, and continued to existindividually or when considered together with any other matter, (x) a declaration of a banking moratorium has had or any suspension of payments in respect of banks is reasonably likely in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, future to have a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in adverse effect on the date business, assets, condition (financial or otherwise), liabilities or results of operations of the Merger Agreement Company and the Company Subsidiaries taken as a whole (i.e., April 16, 2003a "Company Material Adverse Effect"). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Acquisition Agreement (Trans World Airlines Inc /New/)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser the Company shall not be required to accept for payment, purchase, or pay for any Shares tendered, and may terminate or amend the Offer or may postpone the acceptance for payment orof, or the purchase of and the payment for, Shares tendered, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c13e-4(f) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement May 4, 2001, and prior to any acceptance for payment or the time of payment for any such Shares (whether any Shares have theretofore been accepted for payment, purchased, or paid for pursuant to the Offer, ) any one or more of the following events shall have occurred (or shall have been determined by the Company to have occurred) that, in the Company's sole judgment in any such case and regardless of the circumstances giving rise thereto (including any action or omission to act by the Company), makes it inadvisable to proceed with the Offer or with such acceptance for payment or payment:
(a) there shall be instituted have been threatened, instituted, or be pending by any person or Governmental Authority any suit, action or proceeding by any government or governmental regulatory or administrative agency, authority or tribunal, or any other person, domestic or foreign, before any court, authority, agency, or tribunal that is reasonably likely to prevail directly or indirectly (i) challenging or seeking to restrain or prohibit challenges the making of the Offer, the acquisition of some or consummation all of the Shares pursuant to the Offer, or otherwise relates in any manner to the Offer or (ii) in the Company's sole judgment, could materially and adversely affect the business, condition (financial or other), income, operations, or prospects of the Company and its subsidiaries, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of the business of the Company or any of its subsidiaries or materially impair the contemplated benefits of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of SignalCompany;
(b) there shall have been any action threatened, pending, or taken, or approval withheld, or any statute, rule, regulation, judgment, order order, or injunction shall be threatened, proposed, sought, promulgated, enacted, entered, amended, enforced, promulgated or deemed to be applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger Company or any of applicable waiting periods under its subsidiaries, by any court or any authority, agency, or tribunal that, in the HSR ActCompany's sole judgment, that is reasonably likely to result, would or might directly or indirectly, in any of the consequences described in clauses indirectly (i) through make the acceptance for payment of, or payment for, some or all of the Shares illegal or otherwise restrict or prohibit consummation of the Offer, (ii) delay or restrict the ability of the Company, or render the Company unable, to accept for payment or pay for some or all of the Shares, (iii) materially impair the contemplated benefits of subsection the Offer to the Company, or (aiv) abovematerially and adversely affect the business, condition (financial or other), income, operations, or prospects of the Company and its subsidiaries, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of the business of the Company or any of its subsidiaries;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board any general suspension of Directors of Signal shall have withdrawn, modifiedtrading in, or changed its approval limitation on prices for, securities on any national securities exchange or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaserover-the-counter market, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yiii) a the commencement of a war, armed hostilities hostilities, or other international or national calamity directly or international calamity indirectly involving the United States, (iv) any limitation (whether or not mandatory) by any governmental, regulatory, or administrative agency or authority on, or any event that, in the Company's sole judgment, might affect, the extension of credit by banks or other lending institutions in the United States, (v) any significant decrease in the market price of the Shares or any change in the general political, market, economic, or financial conditions in the United States oror abroad that could, in the sole judgment of the Company, have a material adverse effect on the Company's business, operations, or prospects or the trading in the Shares, (vi) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening or acceleration thereof, or (zvii) any decline in either the Dow ▇▇▇▇▇ Industrial Average or the Standard and Poor's Index of 500 Industrial Companies by an amount in excess of 10% measured from the close of business on April 27, 2001;
(d) a material limitation tender or exchange offer with respect to some or all of the Shares (whether other than the Offer), or not mandatorya merger or acquisition proposal for the Company, shall have been proposed, announced, or made by another person or shall have been publicly disclosed, or the Company shall have learned that (i) by any Governmental Authority on person or "group" (within the extension meaning of credit by banks Section 13(d)(3) of the Exchange Act), other than the persons disclosed as holders of more than 5% of the outstanding Shares listed above in Section 2, shall have acquired or other lending institutionsproposed to acquire beneficial ownership of more than 5% of the outstanding Shares, which or any new group shall have been formed that beneficially owns more than five percent of the outstanding Shares; or
(e) any change or changes shall have occurred in the case of clauses business, condition (xfinancial or otherwise), (y) assets, income, operations, prospects, or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date stock ownership of the Merger Agreement (i.e.Company or its subsidiaries that, April 16in the Company's sole judgment, 2003)is or may be material to the Company or its subsidiaries. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser the Company and may be asserted by Crane or Purchaser the Company regardless of the circumstances (including any action or inaction by the Company) giving rise to any such conditions condition, and may be waived by Crane or Purchaser, by express and specific action to that effectthe Company, in whole or in part, at any time and from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The Company's failure by Crane or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right right, and each such right shall be deemed an ongoing right, right which may be asserted at any time and from time to time. Any determination by the Company concerning the events described above will be final and binding.
Appears in 1 contract
Sources: Offer to Purchase (Garan Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the OfferOffer except as otherwise provided in Section 1, Purchaser the Fund shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares, may postpone the acceptance for payment of, or payment for, tendered Shares, and may, in its sole discretion, terminate or amend the Offer as to any Shares not then paid for if (i) more than 290,439.697 Shares are tendered and not withdrawn as of the Expiration Date, or (ii) in the judgment of the Investment Adviser, the assets of the Fund are not sufficiently liquid to fund the purchase of the Shares in the Offer, or (iii) the Fund would not be able to liquidate portfolio securities in a manner that is orderly and consistent with the Fund's investment objectives and policies in order to purchase Shares tendered pursuant to the Offer if Offer, or (iiv) there shall not have been validly tendered and not withdrawn at or prior to the expiration time of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or payment for any of their respective affiliates, represents a majority of the then total issued and outstanding such Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that whether or not any Shares have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or therefore been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance accepted for payment or payment paid for any Shares pursuant to the Offer), any one or more of the following events shall have occurredoccur:
(a) there shall be threatened, instituted or be pending any action, proceeding or application before any court or governmental authority or other regulatory or administrative agency or commission, domestic or foreign, by any person government or Governmental Authority governmental authority or other regulatory or administrative agency or commission, domestic or foreign, or by any suitother person, action domestic or proceeding that is reasonably likely to prevail (i) foreign challenging the acquisition by the Fund of the Shares or seeking to restrain restrain, delay or prohibit the making or consummation of the Offer Offer, or the Merger acceptance for payment, purchase of, or to substantially deprive Crane of any of its anticipated benefits payment for, some or all of the MergerShares or resulting in a delay in, (ii) seeking to prohibit or materially limit the ownership or operation by Signalrestricting, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane the Fund, or Purchaser rendering the Fund unable, to acquire accept for payment, purchase or exercise full rights pay for some or all of ownership of the Shares, including, without limitation, or otherwise directly or indirectly relating in any manner to or affecting the right to vote such Shares on all matters properly presented to the stockholders of Signal;Offer; or
(b) any statute, rule, regulation, judgment, regulation or order or injunction shall be sought, proposed, enacted, promulgated, entered, enforced, promulgated enforced or deemed or become applicable to the Offer and/or the Merger, or any other action shall be taken have been taken, proposed or threatened, by any Governmental Authority government, governmental authority or other regulatory or administrative agency or commission or court, or any other than person, domestic or foreign, that, in the application to sole judgment of the Offer or the Merger of applicable waiting periods under the HSR ActFund, that is reasonably likely to resultmight, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iii) of subsection paragraph (a) above;; or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modifiedany general suspension of, or changed its approval limitation on times or recommendation prices for, trading in respect of securities on any national securities exchange or in the Merger Agreement, over-the Merger counter market or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaserany securities exchange in Brazil, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates or Brazil, (yiii) a commencement of a war, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States oror Brazil, (iv) any limitation (whether or not mandatory) by any governmental authority on, or any other event which, in the sole judgment of the Fund, might affect, the extension of credit by banks or other lending institutions or foreign currency transactions by such institutions or (v) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, in the sole judgment of the Fund, a material acceleration or worsening thereof; or
(d) any change (or acceleration thereofany condition, event or (zdevelopment involving a prospective change) shall have occurred or be threatened in the general economic, financial, currency exchange or market conditions in the United States, in Brazil or abroad that, in the sole judgment of the Fund, has or may have a material limitation adverse effect upon the value of the assets of the Fund; or
(whether e) any other event shall have occurred or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, condition shall exist which in the case judgment of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in the Fund would have a material adverse effect on the date Fund, its assets or its shareholders or any such event will occur or such condition shall exist if the Fund were to purchase Shares in the Offer which in the sole judgment of the Merger Agreement Fund with respect to each and every matter referred to above and regardless of the circum stances (i.e.including any action or inaction by the Fund) giving rise to any such condition, April 16, 2003)makes it inadvisable to proceed with the Offer or with such acceptance for payment or payment. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser the Fund and may be asserted by Crane or Purchaser the Fund regardless of the circumstances circum stances (including any action or inaction by the Fund) giving rise to any such conditions and or may be waived by Crane or Purchaser, by express and specific action to that effect, the Fund in whole or in part, part at any time and from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or Purchaser the Fund 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, right which may be asserted at any time and from time to time. Any determination by the Fund concerning the events described in this Section shall be final and binding on all parties. A public announcement shall be made of a material change in, or waiver of, such conditions, and the Offer may, in certain circumstances, be extended in connection with any such change or waiver.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 15, capitalized terms used but not defined herein will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions term of the OfferOffer or the Merger Agreement, Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser’s obligation to pay for or return tendered shares of Steinway common stock promptly after the termination or withdrawal of the Offer), pay for any Shares shares of Steinway common stock tendered pursuant to the Offer if unless:
(i) there shall not have the Minimum Tender Condition has been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), satisfied;
(ii) the Rights Plan Condition has been satisfied;
(iii) (a) any applicable waiting period (and or any extension(s) extension thereof) under the HSR Act relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger shall not have expired or otherwise been terminated prior and (b) the affirmative approval or clearance of governmental authorities required under Antitrust Laws of Germany relating to the expiration purchase of Shares pursuant to the Offer and the consummation of the Merger shall have been obtained (the “Antitrust Condition”);
(iv) no governmental authority shall have enacted, issued, promulgated, enforced or entered any law or order which is then in effect and has the effect of enjoining or otherwise prohibiting the making of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more of the following events shall have occurred:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(v) the representations and warranties of Steinway contained in (a) Section 4.3 (Capitalization) of the Merger Agreement shall be true and correct in all material respects as of the Expiration Date, (b) any statute, rule, regulation, judgment, order or injunction Section 4.4 (Authority Relative to Agreement); Section 4.25 (Takeover Statutes); Section 4.26 (No Vote Required); Section 4.27 (Brokers); and Section 4.28 (KSTW Merger Agreement) of the Merger Agreement shall be enactedtrue Table of Contents and correct in all material respects as of the Expiration Date, entered, enforced, promulgated or deemed applicable to and (C) the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or courtMerger Agreement, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described those sections specifically identified in clauses (ia) through and (iiib), shall be true and correct (disregarding for purposes of this clause (c) any materiality or “Company Material Adverse Effect” qualifications therein), except with respect to both clause (b) and clause (c), to the extent that any such representation and warranty expressly speaks as of a specified date, in which case such representation and warranty shall be true and correct as of such specified date; provided, however, that the condition set forth in clause (c) shall be deemed to have been satisfied even if any representations and warranties of Steinway are not so true and correct unless the failure of such representations and warranties of Steinway to be so true and correct would have, individually or in the aggregate, a Company Material Adverse Effect; provided, further, however, solely for the purposes of clause (a) above, if one or more inaccuracies in the representations and warranties set forth in Section 4.3 (Capitalization) of subsection the Merger Agreement would cause damages or diminution in value to Parent or Purchaser of $5 million or more or would cause the aggregate amount required to be paid by Parent and/or Purchaser to consummate the Transactions, to increase by $5 million or more, such inaccuracy or inaccuracies will be considered material for purposes of clause (a) above;
(cvi) there Steinway shall have occurred a Material Adverse Effect performed or complied with, in all material respects, its obligations, agreements and covenants to be performed or complied with respect to Signalby it under the Merger Agreement;
(ivii) since the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect date of the Merger Agreement, the Merger there shall not have occurred any change, event or the Offer in occurrence that has had or would reasonably be expected to have a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;Company Material Adverse Effect; and
(eviii) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall not have been terminated in accordance with its terms;
(f) any . Prior to the Offer Closing, Steinway shall deliver to Parent a certificate, signed on behalf of Steinway by its chief executive officer, certifying that none of the representations and warranties of Signal conditions set forth in the Merger Agreement clauses (v), (vi) and (vii) above shall not have occurred and be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case continuing as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation expiration of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement . The foregoing conditions shall be covered by subsection (d) above in addition to, and not this subsection (g); provideda limitation of, furtherthe rights of Parent and Purchaser to extend, that with respect terminate or modify the Offer pursuant to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) terms and conditions of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of other than the initial paragraph of this Section 14Minimum Tender Condition) are for the sole benefit of Crane Parent and Purchaser and, subject to the terms and may be asserted by Crane or Purchaser regardless conditions of the circumstances giving rise to any such conditions this Agreement and applicable Law, may be waived by Crane or Parent and Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of discretion (other than the Merger AgreementMinimum Tender Condition). The failure by Crane Parent or 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, which right that may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 15, capitalized terms used but not defined herein have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions of the Offer, and in addition to (and not in limitation of) Purchaser’s right to extend and amend the Offer at any time in its sole discretion (subject to the provisions of the Merger Agreement), Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for, and may delay the acceptance for any Shares tendered pursuant payment of or, subject to the Offer if (i) there shall not have been restriction referred to above, the payment for, any validly tendered and not withdrawn prior to Shares if by the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority (as it may be extended in accordance with the requirements of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25Merger Agreement), (ii1) any applicable waiting period (and any extension(s) thereof) under the HSR Act Minimum Condition shall not have expired or been terminated prior to be satisfied, (2) the expiration of the Offer Antitrust Condition shall not be satisfied or (iii3) at any time on or after the date of the Merger Agreement and prior to any the acceptance for payment or payment for any of Shares pursuant to the Offer, any one or more of the following events shall have occurredoccur and be continuing:
(a) there shall be instituted any Law or be pending Order enacted, entered, enforced, promulgated or deemed applicable by any person or Governmental Authority to the Offer, the Merger or the transactions contemplated by the Merger Agreement, or any suit, other action or proceeding shall be taken by any Governmental Authority that is reasonably likely to prevail result, directly or indirectly, in (i1) challenging restraining or seeking to restrain prohibiting Purchaser’s or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the Parent’s ownership or operation by Signal, Crane (or that of any of their respective subsidiaries or affiliates) of all or a material portion of the businessRC2’s and RC2’s subsidiaries’ businesses or assets, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal Parent or Crane Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of Signal RC2 or Crane and/or its subsidiaries as a result Parent and their respective subsidiaries, (2) restraining or prohibiting the acquisition by Parent or Purchaser of any Shares under the Offer or the making or consummation of the Offer or the Merger or Merger, (iii) seeking to impose imposing material limitations on the ability of Crane Purchaser, or rendering Purchaser unable, to acquire accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposing material limitations on the ability of Purchaser or Parent to exercise full rights of ownership of the Shares, including, without limitation, including the right to vote such the Shares purchased by it on all matters properly presented to the stockholders RC2’s stockholders; 45 Table of Signal;Contents
(b) since the date of the Merger Agreement, there shall have occurred any statutechange, ruleevent, regulationdevelopment, judgmenteffect, order condition, action, violation, inaccuracy, circumstance or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Mergeroccurrence which has had, or any other action shall which would reasonably be taken by any Governmental Authority expected to have, individually or courtin the aggregate, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) abovea Company Material Adverse Effect;
(c) there a Triggering Event shall have occurred a Material Adverse Effect with respect to Signaloccurred;
(id) (1) the Board representations and warranties of Directors RC2 set forth in Sections 3.03(a) (regarding capitalization of Signal shall have withdrawn, modified, RC2) or changed its approval or recommendation in respect 3.03(c) (regarding equity awards of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (iiRC2) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement shall not be true and correct in all respects (regardingexcept for any de minimis inaccuracy) at and as of the date of the Merger Agreement and at and as of such time on or after the date of the Merger Agreement as though made at and as of such time (except to the extent expressly made as of an earlier date, among other thingsin which case, solicitation at and as of Competing Transactionssuch earlier date), or (iv2) the Board of Directors of Signal shall have resolved to take any of the foregoing actionsrepresentations and warranties of RC2 in Section 3.01(a) (regarding organization and qualification) of the Merger Agreement that is qualified as to “materiality” or “Company Material Adverse Effect” shall not be true and correct in all respects, or any such representation or warranty that is not so qualified as to “materiality” or “Company Material Adverse Effect” shall not be true and correct in all material respects, in each case, at and as of the date of the Merger Agreement and at and as of such time on or after the date of the Merger Agreement as though made at and as of such time (except to the extent expressly made as of an earlier date, in which case, at and as of such earlier date) and (3) any other representation and warranty of RC2 in the Merger Agreement (without giving effect to any qualification as to “materiality” or “Company Material Adverse Effect” qualifiers set forth therein) shall not be true and correct in all respects at and as of the date of the Merger Agreement and at and as of such time on or after the date of the Merger Agreement as though made at and as of such time (except to the extent expressly made as of an earlier date, in which case, at and as of such earlier date), except where the failure to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(e) Signal, Purchaser and Crane RC2 shall have agreed breached or failed, in writing any material respect, to terminate perform or to comply with its agreements and covenants to be performed or complied with by it under the Merger Agreement at or prior to Purchaser’s acceptance for payment of Shares pursuant to the Offer;
(f) RC2 shall have terminated or amended any employment related agreement described in Section 11 — “The Merger Agreement; Other Agreements — New Employment Agreements and Other Employment-Related Agreements” or waived any provision thereof (except, or in each case, with the Merger prior written consent of Parent); or
(g) the Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and Purchaser and Purchaser, may be asserted by Crane Parent or Purchaser regardless of the circumstances giving rise to any such conditions condition, and may be waived by Crane Parent or Purchaser, by express and specific action to that effect, Purchaser in whole or in part, part at any time and from time to time in their the sole discretiondiscretion of Parent or Purchaser (other than the Minimum Condition), subject in each case, subject case to any applicable provisions the terms of the Merger Agreement. The failure by Crane Parent or Purchaser at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right and and, each such right shall will be deemed an ongoing right, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares Shares, may postpone the acceptance for payment of or pay for tendered pursuant to Shares, and may, in its sole discretion, terminate or amend the Offer as to any Shares not then paid for if (i) there shall at the expiration of the Offering Period, the Minimum Condition has not have been validly tendered satisfied or (ii) if on or after February 19, 2002, and not withdrawn at or prior to the time of the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offeror, any one or more of the following events shall have occurredoccur:
(a) there any preliminary or permanent judgment, order, decree, ruling, injunction, action, proceeding or application shall be instituted pending or be pending by threatened before any person court, government or Governmental Authority any suitgovernmental authority or other regulatory or administrative agency or commission, action domestic or proceeding that is reasonably likely to prevail (i) challenging foreign, which would or seeking to restrain might restrain, prohibit or prohibit delay consummation of, or materially alter or otherwise materially affect, the making Offer or consummation the Merger or materially impair the contemplated benefits of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;Sabre; or
(b) any statute, including without limitation any state anti-takeover statute, rule, regulation, judgment, regulation or order or injunction shall be sought, proposed, enacted, promulgated, entered, enforced, promulgated enforced or deemed or become applicable or asserted to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application applicable to the Offer or the Merger, which would or might restrain, prohibit or delay consummation of, or materially alter or otherwise materially affect, the Offer or the Merger of applicable waiting periods under or materially impair the HSR Act, that is reasonably likely to result, directly or indirectly, in any contemplated benefits of the consequences described in clauses (i) through (iii) of subsection (a) above;Offer or the Merger to Sabre; or
(c) any change (or any condition, event or development involving a prospective change) shall have occurred or be threatened that has or might have a materially adverse effect on the business, properties, assets, liabilities, capitalization, stockholders' equity, financial condition, operations, results of operations or prospects of Travelocity or any of its subsidiaries; or
(d) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modifiedany general suspension of, or changed its approval limitation on times or recommendation prices for, trading in respect of securities on any national securities exchange or in the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaserover-the-counter market, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yiii) a commencement the outbreak or escalation of a warwar (whether or not declared), acts of terrorism, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States, (iv) any limitation (whether or not mandatory) by any governmental authority on, or any other event which might affect the extension of credit by banks or other lending institutions, (v) a suspension of or limitation (whether or not mandatory) on the currency exchange markets or the imposition of, or material changes in, any currency or exchange control laws in the United States or, or (vi) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof; or
(e) any tender or acceleration thereofexchange offer with respect to some or all of the outstanding shares of common stock of Sabre or the outstanding Shares (other than the Offer), or a merger, acquisition or other business combination proposal for Sabre or Travelocity (z) a material limitation (whether other than the Offer and the Merger), shall have been proposed, announced or not mandatory) made by any Governmental Authority on person, entity or group; or
(f) Travelocity and Purchaser or Sabre shall have reached an agreement or understanding that the extension Offer be terminated or amended or Sabre or Purchaser (or one of credit their respective affiliates) shall have entered into a definitive agreement or an agreement in principle to acquire Travelocity by banks merger or similar business combination, or purchase of Shares or assets of Travelocity; or
(g) there shall have occurred or be in existence any other lending institutionsevent, circumstance or condition, which, in the reasonable judgment of Sabre, would prevent Sabre or Purchaser from effecting the Merger following the completion of the Offer; 45 which in the case reasonable judgment of clauses (x), (y) Purchaser and Sabre with res▇▇▇▇ ▇▇ ▇ach and every matter referred to above makes it inadvisable to proceed with the Offer or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on with the date of the Merger Agreement (i.e., April 16, 2003)Merger. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Purchaser and Purchaser Sabre and may be asserted by Crane Purchaser or Purchaser Sabre regardless of the circumstances (including any action or inaction by Purchaser or Sabre) giving rise to any such conditions and or may be waived by Crane Purchaser or Purchaser, by express and specific action to that effect, Sabre in whole or in part, part at any time and from time to time in their reasonable discretion. The determination as to whether any condition has occurred shall be in the sole discretion, in each case, subject to any applicable provisions and reasonable judgment of the Merger AgreementPurchaser and Sabre and will be final and binding on all parties. The failure by Crane Purchaser or Purchaser Sabre 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, right which may be asserted at any time and from time to time. Notwithstanding the foregoing, Sabre and Purchaser shall not purchase Shares in the Offer if less than a majority of the outstanding Shares, excluding Shares beneficially owned by Sabre and its subsidiaries, are validly tendered and not withdrawn. A public announcement shall be made of a material change in, or waiver of, such conditions, and the Offer may, in certain circumstances, be extended in connection with any such change or waiver. All Offer Conditions must be satisfied or waived prior to the commencement of any Subsequent Offering Period.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of If an Offer is commenced, the Offer, Purchaser shall not be required parties agree that Wayfarer's obligation to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer if shall be subject to (ix) there shall not have been validly tendered and not withdrawn prior to the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when added to Shares, taken together with (i) Shares (if any, previously acquired ) then owned by Purchaser or Crane or any Wayfarer and (ii) Shares that are issuable upon exercise of their respective affiliatesthe Warrants, represents a majority at least 67% of the Shares then total issued and outstanding Shares (assumingoutstanding, for this purpose, after giving effect to the issuance of shares of FCCC Common Stock upon exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25the Warrants (the "Minimum Condition"), (iiy) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to satisfaction of the condition that at the expiration of the Offer there shall be no impediment or (iii) at any time on or after obstacle to the date consummation of Wayfarer's purchase of all of the Merger Agreement Warrants on the terms set forth in this Agreement, and prior (z) the satisfaction (or waiver by Wayfarer) of the other conditions of the Offer including those set forth in Annex I. Wayfarer expressly reserves the right to any acceptance for payment or payment for any Shares pursuant elect not to commence the Offer, any one or more of the following events shall have occurred:
(a) there shall be instituted or be pending by any person or Governmental Authority any suitor, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of if the Offer or the Merger or is commenced, to substantially deprive Crane of waive any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except conditions to the extent such representations legally permissible, to increase the price per Share payable in the Offer and warranties expressly relate to an earlier date (make any other changes in which case as the terms of such date)the Offer; provided, that Wayfarer shall not be permitted to waive the condition described Minimum Condition if the number of Shares validly tendered in this clause (f) shall be deemed not to have been triggered so long as accordance with the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation terms of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation Offer and not withdrawn represents less than 55% of the Offer, which failure to perform is incapable of being cured or, with respect to a failure Shares then outstanding (not counting any Shares that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 may be issuable upon exercise of the Merger Agreement shall be covered by subsection (d) above and not this subsection (gWarrants); and provided, further, that with respect to any breach by Signal no change in the terms of the provisions Offer may be made without the prior written consent of Section 2.04(a) (other than the first sentence thereofFCCC, which has no cure periodFCCC may grant or withhold in its sole discretion, if such change would (i) of decrease the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments price per Share payable in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a (ii) change the form of, timing of payment of, or other material worsening term or acceleration thereofcondition with respect to, the consideration to be paid in the Offer, or (ziii) a material limitation (whether or not mandatory) by any Governmental Authority on reduce the extension minimum number of credit by banks or other lending institutions, which Shares sought to be purchased in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to timeOffer.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, the obligation of Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares tendered pursuant to the Offer if will be subject to (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)Minimum Condition, (ii) any applicable the waiting period (and any extension(s) thereof) under pursuant to the provisions of the HSR Act shall not have expired and any applicable foreign or been terminated prior supranational antitrust laws applicable to the expiration of the Offer or the Merger expiring or terminating, and (iii) at any time on or after the date occurrence of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more none of the following events shall have occurredat any time before payment for any Shares:
(a) there The DOJ, the FTC or any foreign or supranational agency or entity charged with enforcement of antitrust laws applicable to the transactions contemplated initiates, challenges or seeks to enjoin the consummation of the Offer or the Merger and such actions remain pending, or
(i) Any order or preliminary or permanent injunction shall be instituted or be pending by entered in any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail before any court of competent jurisdiction or any statute, rule, regulation, legislation, or order shall be enacted, entered, enforced, promulgated, amended or issued by any United States legislative body, court, government or governmental, administrative or regulatory authority or agency (iother than the waiting period provisions of the HSR Act) challenging which shall remain in effect and which shall have the effect of (x) making illegal or seeking to restrain restraining or prohibit prohibiting the making of the Offer, the acceptance for payment of, or payment for, the Shares by Parent, Purchaser or any other affiliate of Parent, or the consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (iiy) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose imposing material limitations on the ability of Crane or Purchaser effectively to acquire or hold or exercise full rights of ownership of the Shares, including, without limitation, the right to vote such the Shares purchased by Purchaser on all matters properly presented to the stockholders shareholders of Signal;the Company; (ii) any proceeding brought by an administrative agency or commission or other domestic governmental entity seeking any of the foregoing shall be pending; or (iii) any action or proceeding shall be commenced following the date of the Merger Agreement and be pending before any court of competent jurisdiction which would have a material adverse effect on the Company, or
(bc) any statute, rule, regulation, judgment, order or injunction The Company and Parent shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to have reached an agreement that the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offerbe terminated, or the Merger Agreement shall have been terminated in accordance with its terms;, or
(fd) any The Company shall have breached one or more of the its representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it obligations, covenants or agreements under the Merger Agreement at and such breaches or prior to consummation of the Offer, which failure failures to perform is incapable shall in the aggregate have a value in excess of being cured $250,000, or, with respect to a failure that is curable, has not been cured within twenty
(20e) business days On or after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) date of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there any Material Adverse Effect on the Company shall have occurred, and continued to exist, (x) a declaration of a banking moratorium occurred or any suspension of payments in respect of banks in be occurring. The Offer will terminate if the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money Merger Agreement is terminated pursuant to its credit facilities terms. The Purchaser Group has agreed in effect on the date of the Merger Agreement (i.e., April 16, 2003)to use its reasonable best efforts to cause all conditions to the Offer to be fulfilled. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and the Purchaser and Group, may be asserted by Crane or the Purchaser Group regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, the Purchaser Group in whole or in part, part at any time and from time to time in their sole discretiontime; provided, in each case, subject to any applicable provisions that Purchaser may waive the Minimum Condition only if more than 50% of the Merger AgreementShares are tendered in the Offer and if BNS amends or waives the conditions of its Commitment Letter. The failure by Crane or the Purchaser Group at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right and each such right shall will be deemed an ongoing right, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Merger Agreement or the Offer, Purchaser shall will not be required to accept for payment orpayment, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, purchase or pay for any Shares tendered and may terminate or (subject to the terms of the Merger Agreement) amend the Offer and may postpone the acceptance for payment of and payment for any Shares, if prior to the Expiration Date and if pursuant to the Offer if (whether or not any Shares have theretofore been accepted for payment or paid for pursuant to the Offer) (i) there the Minimum Condition shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)satisfied, (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer terminated, or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more of the following events shall have occurredoccur:
(a) there shall be instituted or be pending by any person or Governmental Authority governmental entity any suit, action or proceeding that is reasonably likely to prevail (i) challenging the acquisition by Parent or Purchaser of any Shares pursuant to the Offer, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane the performance of any of its anticipated benefits of the Mergerother transactions contemplated by the Merger Agreement, the Company Option Agreement or the Stockholders Agreement or seeking to obtain from the Company, Parent or Purchaser any damages that are material in relation to the Company or Parent, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane the Company or any of their respective subsidiaries Parent of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company or Crane and/or its subsidiaries Parent, or to compel the Company or Parent to dispose of or hold separate a material portion of the business or assets of the Company or Parent, in each case as a result of the Offer or any of the other transactions contemplated by the Merger Agreement, the Company Option Agreement or the Stockholders Agreement, (iii) seeking to impose material limitations on the ability of Crane Parent or Purchaser to acquire or hold, or exercise full rights of ownership of Sharesof, any Shares to be accepted for payment pursuant to the Offer including, without limitation, the right to vote such Shares shares on all matters properly presented to the stockholders of Signalthe Company, (iv) seeking to prohibit Parent or Purchaser from effectively controlling in any material respect any material portion of the business or operations of the Company, (v) that could reasonably be expected to require the divestiture by Parent or Purchaser of any Shares, or (vi) that could reasonably be expected to result in a material adverse effect on the Company or Parent;
(b) there shall be any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken by any Governmental Authority governmental entity or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, would result in any of the consequences described referred to in clauses (i) through (iiivi) of subsection paragraph (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modifiedany general suspension of, or changed its approval limitation on prices for, trading in securities on the Nasdaq National Market, (ii) a declaration of a banking moratorium or recommendation any general suspension of payments in respect of banks in the United States or (iii) in the case of any of the foregoing existing at the time of the execution of the Merger Agreement, a material acceleration or worsening thereof;
(d) there shall have occurred any event or change since September 24, 1999 that could reasonably be expected to have a material adverse effect on the Merger Company, other than any event or change specifically set forth in the Offer in a manner adverse Company's disclosure schedule attached to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actionsAgreement;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal the Company set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time date of any such determinationthe Merger Agreement and at the scheduled or extended expiration of the Offer, except to unless the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure effect of all such representations and warranties so failures to be true and correct would could not reasonably be expected to have a Material Adverse Effect material adverse effect on Signal the Company or prevent or materially delay a material adverse effect on the consummation of the OfferOffer or the Merger;
(gf) Signal the Company shall have failed to perform in any material respect obligation or to comply with any agreement or covenant of its obligations required the Company to be performed or complied with by it under the Merger Agreement at or prior the Company Option Agreement, unless the effect of all such failures to perform or comply could not reasonably be expected to have a material adverse effect on the Company or a material adverse effect on the consummation of the Offer or the Merger;
(g) any required regulatory approval or other third party consent, authorization or approval which, if not obtained in connection with the consummation of the transactions contemplated hereby, could reasonably be expected to have a material adverse effect on the Company, shall not have been obtained, declared or filed or have occurred, as the case may be, or any such required regulatory approval or other third party consent, authorization or approval shall not be in full force and effect;
(h) the Company Board (i) shall have withdrawn, or modified or changed in a manner adverse to Parent or Purchaser (including by amendment of the Schedule 14D-9) its recommendation of the Offer, which failure the Merger Agreement or the Merger, (ii) shall have recommended a Company Takeover Proposal or Alternative Transaction, (iii) shall have adopted any resolution to perform is incapable effect any of being cured orthe foregoing or (iv) upon the request of Parent or Purchaser, with respect shall have failed to a failure that is curablereaffirm its approval or recommendation of the Offer, has not been cured the Merger Agreement or the Merger within twenty two business days;
(20i) business days after any person or "group" (within the giving of written notice thereof by Crane to Signal; provided, that any material breach meaning of Section 6.05 13(d)(3) of the Exchange Act), other than Parent, Purchaser or their affiliates or any group of which any of them is a member, shall have acquired or announced its intention to acquire beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 10% or more of the Shares and, in the good faith judgment of Parent or Purchaser in its sole discretion, made it inadvisable to proceed with such acceptance of shares for payment or the payment therefor; provided that this condition shall not apply upon satisfaction and maintenance of the Minimum Condition;
(j) the Company shall have commenced a case under any chapter of Title XI of the United States Code or any similar law or regulation; or a petition under any chapter of Title XI of the United States Code or any similar law or regulation shall have been filed against the Company which is not dismissed within two days;
(k) the Stockholders Agreement shall not have been executed by each of the parties thereto other than Parent and Purchaser;
(l) a Distribution Date shall have occurred under the Rights Agreement; or
(m) the Merger Agreement shall be covered have been terminated by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of Parent or the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money Company pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003)terms. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and Purchaser and may be asserted by Crane or Parent and Purchaser regardless of the circumstances giving rise to any such conditions and condition or may be waived by Crane or Purchaser, by express Parent and specific action to that effect, Purchaser in whole or in part, part at any time and from time to time in their sole discretiontime; provided, in each casehowever, subject to any applicable provisions that Purchaser shall not reduce the Minimum Condition below a majority of the Merger Agreementoutstanding Shares on a fully diluted basis without the prior written consent of the Company. The failure by Crane Parent or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time. Should the Offer be terminated pursuant to the foregoing provisions, all tendered Shares not theretofore accepted for payment shall forthwith be returned by the Depositary to the tendering stockholders.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 15, capitalized terms used but not defined herein will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any the applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer Offer, if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more of the following events shall have occurred:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms, (ii) the Minimum Condition shall not have been satisfied at any then scheduled Expiration Date; or (iii) any of the following conditions have not been satisfied (or, to the extent legally permissible, waived) at the Expiration Date:
(a) any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act and any other applicable antitrust law shall have expired or been terminated;
(fi) any of the representations and warranties of Signal set forth Tasty Baking contained in Sections 4.02, 4.03(a), or 4.03(d) of the Merger Agreement Agreement, without giving effect to materiality or “Company Material Adverse Effect” qualifications, shall not be true and correct in all material respects as of the Expiration Time as though made as of the Expiration Time (except for representations and warranties made as of a specified date, the accuracy of which will be determined only as of the specified date), and (ii) all of the remaining representations and warranties of Tasty Baking set forth in Article IV of the Merger Agreement, without regard giving effect to any materiality qualifications or references to “Company Material Adverse Effect contained in any specific representation or warranty) Effect” qualifications, shall be true and correct as if of the Expiration Time as though made as of the Expiration Time (except for representations and warranties made as of a specified date, the accuracy of which will be determined only as of the specified date), except with respect to this clause (ii), where the failure of such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be so true and correct would not not, individually or in the aggregate, have a Company Material Adverse Effect on Signal or prevent or materially delay the consummation of the OfferEffect;
(gc) Signal Tasty Baking shall have failed to perform in any material respect any of its obligations required performed or complied with each agreement and covenant to be performed or complied with by it under the Merger Agreement at or prior to the Expiration Time, except for such failures that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(d) no Governmental Entity shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order that is in effect and which has the effect 34 Table of Contents of making the Offer, Top-Up Option or Merger illegal or otherwise prohibiting or preventing the consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty Top-Up Option or Merger;
(20e) business days after since the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) date of the Merger Agreement, Signal a Company Material Adverse Effect shall be afforded up not have occurred;
(f) Purchaser shall have received a certificate of Tasty Baking, executed by the Chief Executive Officer and the Chief Financial Officer of Tasty Baking, dated as of the Expiration Time, to thirty the effect that the conditions set forth in paragraphs (30b) business days and (c) above have occurred;
(g) The board of directors of Tasty Baking shall not have withdrawn or modified (including by amendment of the Schedule 14D-9) in a manner adverse to cure such breach; orPurchaser the Company Recommendation;
(h) there shall have occurred, and continued not be pending any Legal Action by a federal or state Governmental Entity challenging or seeking to exist, (x) a declaration of a banking moratorium restrain or any suspension of payments in respect of banks in prohibit the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any consummation of the foregoing occurrences existing on Offer or the Merger;
(i) there shall not have occurred or be continuing any Company Insolvency Event; or
(j) there shall not have been any material breach or default by Tasty Baking under the lease agreement between Liberty Property/Synterra Limited Partnership and Tasty Baking, dated May 8, 2007, as amended, for the property located at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, together with any written waivers between the time of parties thereto concerning the commencement of the Offer, a material worsening or acceleration terms thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and Purchaser and may be asserted waived by Crane Parent or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, part at any time and from time to time prior to the expiration of the Offer or prior to the acceptance of the Shares for payment in the case of a condition that depends upon receipt of government regulatory approvals in their sole discretion, in each case, subject to any applicable provisions the terms of the Merger Agreement. Parent and Purchaser will terminate the Offer only pursuant to the specified conditions described in the Offer to Purchase. The failure by Crane Parent or 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, which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions term of the OfferOffer or the Merger Agreement, provided that no Shares have theretofore been accepted for payment or paid for, Purchaser shall not be required to accept for payment oror pay for, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under of the Exchange Act, pay for any Shares tendered pursuant to and may terminate or amend the Offer Offer, if (i) the conditions that there shall not have been be validly tendered and not withdrawn prior to the expiration of the Offer that a number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, which represents a majority at least 51% of the then total number of issued and outstanding Shares on a fully diluted basis (assumingexcluding, for this purposehowever, shares of the Company's common stock issuable (x) upon exercise of all options conversion rights pursuant to purchase shares the Deferral Agreement and (y) upon exercise of Common Stock Company Options that have a per share exercise price of less than $13.25are not exercisable prior to March 1, 2000), shall not have been satisfied (the "Minimum Condition") or (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to before the time of payment for any acceptance such Shares (whether or not any Shares have theretofore been accepted for payment or payment paid for any Shares pursuant to the Offer), any one or more of the following events shall have occurredconditions exists:
(a) there shall be instituted in effect an injunction or be pending other order, decree, judgment or ruling by a Governmental Authority of competent jurisdiction or a Law shall have been promulgated, or enacted by a Governmental Authority of competent jurisdiction which in any such case (i) restrains or prohibits the making or consummation of the Offer or the consummation of the Merger, (ii) prohibits or restricts the ownership or operation by Parent (or any of its affiliates or subsidiaries) of any portion of the Company's business or assets or Tyco's business or assets related to the printed circuit board business, which is material to the printed circuit board business of all such entities taken as a whole or which would substantially deprive Parent and/or its affiliates or subsidiaries of the benefit of ownership of the Company's business or assets, or compels Parent (or any of its affiliates or subsidiaries) to dispose of or hold separate any portion of the Company's business or assets, or Tyco's business or assets relating to the printed circuit board business, which is material to the printed circuit board business of all such entities taken as a whole or which would substantially deprive Parent and/or its affiliates or subsidiaries of the benefit of ownership of the Company's business or assets, (iii) imposes material limitations on the ability of Purchaser effectively to acquire or to hold or to exercise full rights of ownership of the Shares, including, without limitation, the right to vote Shares purchased by Purchaser pursuant to the Offer or the Merger on all matters properly presented to the shareholders of the Company, or (iv) imposes any material limitations on the ability of Parent and/or its affiliates or subsidiaries effectively to control in any material respect the business and operations of the Company, or (v) seeks to restrict any future business activity by Parent (or any of its affiliates) relating to the printed circuit board business, including, without limitation, by requiring the prior consent of any person or entity (including any Governmental Authority) to future transactions by Parent (or any of its affiliates); or
(b) there shall have been instituted, pending or threatened an action by a Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the consummation of the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority restriction, prohibition or court, other than limitation referred to in the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection foregoing paragraph (a) above;); or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated by the Company or Parent in accordance with its terms;; or
(d) there shall have occurred (i) any general suspension of, or limitation on prices for, trading in the Shares on the NASDAQ, (ii) a declaration of a banking moratorium or any general suspension of payments in respect of banks in the United States or (iii) in the case of any of the foregoing existing at the time of the execution of the Merger Agreement, a material acceleration or worsening thereof; or
(e) Parent and the Company shall have agreed that Purchaser shall amend the Offer to terminate the Offer or postpone the payment for Shares pursuant thereto; or
(f) any of the representations and warranties of Signal set forth made by the Company in the Merger Agreement shall not be have been true and correct (without regard to any materiality qualifications in all material respects when made, or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to thereafter have been triggered so long as the failure of all such representations and warranties so ceased to be true and correct would in all material respects as if made as of such later date (other than representations and warranties made as of a specified date) (in each case without for this purpose giving effect to qualifications of materiality contained in such representation and warranty), or the Company shall not in all material respects have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required performed each obligation and agreement and complied with each covenant to be performed and complied with by it under the Merger Agreement at Agreement, if such failure to be true and correct or prior such failure to consummation of perform, individually or in the Offeraggregate, which would reasonably be expected to have a Material Adverse Effect, PROVIDED, HOWEVER, that such breach or failure to perform is incapable of being cured or, with respect to a failure that is curable, or has not been cured within twenty (20) business five days after the giving of written notice thereof by Crane to Signal; providedthe Company, PROVIDED, HOWEVER, that any material breach of Section 6.05 no such 5-day cure period shall require extension of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of Offer beyond the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of initial 20 business days provided in the Merger Agreement; or
(g) the Company's Board of Directors shall have modified or amended its recommendation of the Offer in any manner adverse to Parent or shall have withdrawn its recommendation of the Offer, Signal or shall be afforded up have recommended acceptance of any Company Takeover Proposal or shall have resolved to thirty (30) business days to cure such breachdo any of the foregoing; or
(h) there (i) any new group shall have occurred, been formed which beneficially owns more than 15% of the outstanding Shares and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks which does not tender the Shares beneficially owned by it in the United StatesOffer; or (ii) any person/group (other than Parent or one or more of its affiliates) shall have entered into an agreement in principle or definitive agreement with the Company with respect to a tender or exchange offer for any Shares or a merger, (y) a commencement of a war, armed hostilities consolidation or other national business combination with or international calamity involving the Company; or
(i) any change, development, effect or circumstance shall have occurred or be threatened that would reasonably be expected to have a Material Adverse Effect with respect to the Company; or
(j) the Company shall commence a case under any chapter of Title XI of the United States or, in the case Code or any similar law or regulation; or a petition under any chapter of any Title XI of the foregoing occurrences existing on United States Code or at any similar law or regulation is filed against the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or Company which is not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003)dismissed within 2 business days. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and Purchaser and may be asserted by Crane Parent or Purchaser regardless of the circumstances giving rise to any such conditions condition and may be waived by Crane Parent or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretiontime, in each case, subject to any applicable provisions the sole discretion of the Merger AgreementParent. The failure by Crane Parent or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any right, the waiver of such right with respect to any particular facts or circumstances shall not be deemed a waiver with respect to any other facts or circumstances, and each such right shall be deemed an ongoing right, right which may be asserted at any time and from time to time. Should the Offer be terminated pursuant to the foregoing provisions, all tendered Shares not theretofore accepted for payment shall forthwith be returned to the tendering shareholders.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the OfferOffer except as otherwise provided in Section 1, Purchaser the Fund shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares, may postpone the acceptance for payment of, or payment for, tendered Shares, and may, in its reasonable discretion, terminate or amend the Offer as to any Shares not then paid for if (i) more than 514,043.873 Shares are tendered and not withdrawn as of the Expiration Date, or (ii) in the judgment of the Investment Adviser, the assets of the Fund are not sufficiently liquid to fund the purchase of the Shares in the Offer, or (iii) the Fund would not be able to liquidate portfolio securities in a manner that is orderly and consistent with the Fund's investment objectives and policies in order to purchase Shares tendered pursuant to the Offer if Offer, or (iiv) there shall not have been validly tendered and not withdrawn at or prior to the time of expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or date for any of their respective affiliates, represents a majority of the then total issued and outstanding such Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that whether or not any Shares have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or therefore been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance accepted for payment or payment paid for any Shares pursuant to the Offer), any one or more of the following events shall have occurredoccur:
(a) there shall be threatened, instituted or be pending any action, proceeding or application before any court or governmental authority or other regulatory or administrative agency or commission, domestic or foreign, by any person government or Governmental Authority governmental authority or other regulatory or administrative agency or commission, domestic or foreign, or by any suitother person, action domestic or proceeding that is reasonably likely to prevail (i) foreign challenging the acquisition by the Fund of the Shares or seeking to restrain restrain, delay or prohibit the making or consummation of the Offer Offer, or the Merger acceptance for payment, purchase of, or to substantially deprive Crane of any of its anticipated benefits payment for, some or all of the MergerShares or resulting in a delay in, (ii) seeking to prohibit or materially limit the ownership or operation by Signalrestricting, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane the Fund, or Purchaser rendering the Fund unable, to acquire accept for payment, purchase or exercise full rights pay for some or all of ownership of the Shares, including, without limitation, or otherwise directly or indirectly relating in any manner to or affecting the right to vote such Shares on all matters properly presented to the stockholders of Signal;Offer; or
(b) any statute, rule, regulation, judgment, regulation or order or injunction shall be sought, proposed, enacted, promulgated, entered, enforced, promulgated enforced or deemed or become applicable to the Offer and/or the Merger, or any other action shall be taken have been taken, proposed or threatened, by any Governmental Authority government, governmental authority or other regulatory or administrative agency or commission or court, or any other than person, domestic or foreign, that, in the application to reasonable judgment of the Offer or the Merger of applicable waiting periods under the HSR ActFund, that is reasonably likely to resultmight, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iii) of subsection paragraph (a) above;; or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modifiedany general suspension of, or changed its approval limitation on times or recommendation prices for, trading in respect of securities on any national securities exchange or in the Merger Agreement, over-the Merger counter market or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaserany securities exchange in Brazil, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates or Brazil, (yiii) a commencement of a war, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States oror Brazil, (iv) any limitation (whether or not mandatory) by any governmental authority on, or any other event which, in the reasonable judgment of the Fund, might affect, the extension of credit by banks or other lending institutions or foreign currency transactions by such institutions or (v) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, in the reasonable judgment of the Fund, a material acceleration or worsening thereof; or
(d) any change (or acceleration thereofany condition, event or (zdevelopment involving a prospective change) shall have occurred or be threatened in the general economic, financial, currency exchange or market conditions in the United States, in Brazil or abroad that, in the reasonable judgment of the Fund, has or may have a material limitation adverse effect upon the value of the assets of the Fund; or
(whether e) any other event shall have occurred or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, condition shall exist which in the case judgment of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in the Fund would have a material adverse effect on the date Fund, its assets or its shareholders or any such event will occur or such condition shall exist if the Fund were to purchase Shares in the Offer which in the sole judgment of the Merger Agreement Fund with respect to each and every matter referred to above and regardless of the circum stances (i.e.including any action or inaction by the Fund) giving rise to any such condition, April 16, 2003)makes it inadvisable to proceed with the Offer or with such acceptance for payment or payment. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser the Fund and may be asserted by Crane or Purchaser the Fund regardless of the circumstances circum stances (including any action or inaction by the Fund) giving rise to any such conditions and or may be waived by Crane or Purchaser, by express and specific action to that effect, the Fund in whole or in part, part at any time and from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or Purchaser the Fund 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, right which may be asserted at any time and from time to time. Any determination by the Fund concerning the events described in this Section shall be final and binding on all parties. A public announcement shall be made of a material change in, or waiver of, such conditions, and the Offer may, in certain circumstances, be extended in connection with any such change or waiver.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, and in addition to (and not in limitation of Purchaser's rights to extend and amend the Offer at any time in its sole discretion, and subject to the provisions of the Merger Agreement, Purchaser shall will not be required to accept for payment or pay for any of the Shares, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange Act, pay for the payment for, any of the tendered Shares, and may terminate or amend the Offer as to any of the Shares not then paid for, if: (1) at or prior to the expiration date of the Offer, the number of the Shares validly tendered and not withdrawn, together with any of the Shares then owned by Parent or Purchaser, shall not satisfy the Minimum Condition or the Revised Minimum Number; or (2) at or prior to the expiration date of the Offer, (i) any waiting period under the HSR Act applicable to the purchase of the Shares pursuant to the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated or (ii) all requirements of any applicable foreign competition and antitrust statutes and regulations to the consummation of the Offer shall not have been satisfied, including approval by the FCO pursuant to the AARC; or (3) immediately prior to the expiration date of the Offer Offer, the Transaction Expenses (as defined in the Merger Agreement) shall be in excess of $250,000, as calculated by a schedule delivered by the Company to Purchaser (i) identifying and disclosing any and all actual Transaction Expenses as of the date of such schedule and (ii) identifying and providing reasonable estimates of any and all other Transaction Expenses following the date of such schedule; or (iii4) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment of or payment for any Shares pursuant to the OfferShares, any one or more of the following events shall have occurred:
or conditions occurs or exists: (a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that by any Governmental Authority, whether or not having the force of law is reasonably likely to prevail instituted or is pending: (i) challenging or seeking to make illegal, to delay or otherwise directly or indirectly to restrain or prohibit the making or consummation of the Offer Offer, the acceptance for payment of or payment 32 for some of or all the Shares by Purchaser, Parent or any affiliate of Parent or the Merger consummation by Purchaser or to substantially deprive Crane Parent of any of its anticipated benefits of the Mergerother Transaction, or seeking to obtain damages in connection with any Transaction; (ii) seeking to restrain or prohibit Parent's or materially limit the Purchaser's full rights of ownership or operation by Signal, Crane (or any that of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its Parent's subsidiaries or to compel Signal or Crane to dispose affiliates) of or hold separate any material portion of the business or assets of Signal the Company, or Crane and/or to compel Parent or any of its subsidiaries as a result or affiliates to dispose of or hold separate all or any portion of the Offer business or assets of the Merger Company or of Parent or any of its subsidiaries; (iii) seeking to impose material limitations on the ability of Crane Parent or Purchaser any of its subsidiaries or affiliates effectively to acquire or exercise full rights of ownership of the Shares, including, without limitation, the right to vote such any of the Shares acquired or owned by Parent or any of its subsidiaries or affiliates on all matters properly presented to the stockholders Company's shareholders; (iv) seeking to require divestiture by Parent or any of Signal;
its subsidiaries of any Shares; or (v) that otherwise, in the judgment of Parent or Purchaser may materially adversely affect the Company, any of the Subsidiaries, or Parent or any of its subsidiaries; or (b) any action is taken or any statute, rule, regulation, judgment, administrative interpretation, injunction, order or injunction shall be decree is proposed, enacted, entered, enforced, promulgated promulgated, issued or deemed applicable to Parent or Purchaser or any subsidiary or affiliate of Parent, the Offer and/or Company or any of its Subsidiaries or the MergerOffer, the acceptance for payment of or payment for any of the Shares, the Merger or any other action shall be taken Transactions by any Governmental Authority or court, (other than the application to of the Offer or the Merger routine waiting period provisions of applicable waiting periods under the HSR Act), that directly or indirectly, result, or is reasonably reasonable likely to resultto, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iii) of subsection paragraph (a) above;
; or (c) there shall any event that has had or could reasonably be expected to have occurred a Material Adverse Effect with respect to Signal;
Effect; or (d) (i) any general suspension of trading in securities on the Board of Directors of Signal shall have withdrawn, modified, New York Stock Exchange or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or PurchaserNASDAQ, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time declaration of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks or any limitation (whether or not mandatory) which is material to the Transactions on the extension of credit by lending institutions in the United StatesStates or the Federal Republic of Germany, (yiii) a commencement of a war, armed hostilities or other national or international calamity crisis directly involving the United States or, or the Federal Republic of Germany or otherwise having a significant adverse effect on the functioning of the financial markets in the case United States or the Federal Republic of Germany, (iv) any significant change in the United States or German currency exchange rates or suspension of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation markets therefor (whether or not mandatory) or the imposition of, or any significant change in, any currency or exchange control laws in the United States or the Federal Republic of Germany which change or suspension is material to the Transactions, or (v) any limitation by any Governmental Authority on that is likely to materially and adversely affect the extension financing of credit by banks the Offer or other lending institutions, which in the case of clauses (x), (y) Merger; or (ze) prevents Crane from borrowing money pursuant any Third Party enters into a definitive agreement or an agreement in principle with respect to an Alternative Transaction; or (f) the Board (i) withdraws, or modifies or changes in a manner adverse to Parent or Purchaser (including by amendment of the Schedule 14D-9) its credit facilities in effect on approval or recommendation of the date of Offer, the Merger Agreement or the Merger, (i.e.ii) recommends an Alternative Transaction, April 16or (iii) upon request of the Parent or Purchaser, 2003). The foregoing conditions fails to reaffirm such approval or recommendation or resolves to do any of the foregoing; or (including those g) the Company breaches or fails to perform in any material respect any of its covenants or agreements under the Merger Agreement, or any of its representations and warranties set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure , the Common Stock Option, or the Stock Option Agreement is not true in any respect when made or at the Effective Time as if made at and as of such time (other than representations and warranties which by Crane their terms address matters only as of a certain date, which are true as of such date), and in either case the effect thereof is reasonably expected to have a Material Adverse Effect on the Company; or Purchaser at any time (h) the Merger Agreement is terminated in accordance with its terms or amended in accordance with its terms to exercise any provide for such termination or amendment of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right, which may be asserted at any time and from time to time.Offer. 33
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, the Purchaser shall not be required to accept for payment payment, or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, any Shares tendered and may postpone the acceptance for payment or, subject to the restriction referred to above, payments for any Shares tendered pursuant to tendered, and may amend or terminate the Offer if (whether or not any Shares have theretofore been purchased or paid for) if, in the sole discretion of the Purchaser, (i) there shall not have been the condition that at least a majority of the outstanding Shares be validly tendered and not withdrawn prior to the expiration Expiration Date, as described on the cover page of this Offer to Purchase, has not been satisfied prior to or on the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser Expiration Date; or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement December 5, 1997 and prior to any acceptance for payment or payment for any Shares pursuant to on the OfferExpiration Date, any one or more of the following events shall have occurred:
(a) a. there shall be instituted exists any order or be pending by any person or Governmental Authority any suit, action or proceeding that is proceeding, by or before any court or governmental, administrative or regulatory authority or agency which does or would reasonably likely be expected to prevail (i) challenging unreasonably delay or seeking to burden, restrain or prohibit the making or consummation of the Offer or seek to obtain material damages in connection therewith; or
b. any applicable governmental approvals or consents necessary for the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result consummation of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Sharesshall not have been received, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders expiration or termination of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods period under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane the Purchaser (and Purchaser its affiliates) and may be asserted by Crane or the Purchaser regardless of the circumstances (including, without limitation, any action or inaction by the Purchaser) giving rise to any such conditions and condition or may be waived by Crane or Purchaser, by express and specific action to that effect, the Purchaser in whole or in part, at any time and part from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or the 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, which right and may be asserted at any time and from time to time. Any determination by the Purchaser concerning any of the events described in this Section 10 shall be final and binding.
Appears in 1 contract
Sources: Offer to Purchase (Cedar Bay Co)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the OfferOffer except as otherwise provided in Section 1, Purchaser the Fund shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares, may postpone the acceptance for payment of, or payment for, tendered Shares, and may, in its reasonable discretion, terminate or amend the Offer as to any Shares not then paid for if (i) more than 523,461.312 Shares are tendered and not withdrawn as of the Expiration Date, or (ii) in the judgment of the Investment Adviser, the assets of the Fund are not sufficiently liquid to fund the purchase of the Shares in the Offer, or (iii) the Fund would not be able to liquidate portfolio securities in a manner that is orderly and consistent with the Fund's investment objectives and policies in order to purchase Shares tendered pursuant to the Offer if Offer, or (iiv) there shall not have been validly tendered and not withdrawn at or prior to the time of expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or date for any of their respective affiliates, represents a majority of the then total issued and outstanding such Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that whether or not any Shares have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or therefore been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance accepted for payment or payment paid for any Shares pursuant to the Offer), any one or more of the following events shall have occurredoccur:
(a) there shall be threatened, instituted or be pending any action, proceeding or application before any court or governmental authority or other regulatory or administrative agency or commission, domestic or foreign, by any person government or Governmental Authority governmental authority or other regulatory or administrative agency or commission, domestic or foreign, or by any suitother person, action domestic or proceeding that is reasonably likely to prevail (i) foreign challenging the acquisition by the Fund of the Shares or seeking to restrain restrain, delay or prohibit the making or consummation of the Offer Offer, or the Merger acceptance for payment, purchase of, or to substantially deprive Crane of any of its anticipated benefits payment for, some or all of the MergerShares or resulting in a delay in, (ii) seeking to prohibit or materially limit the ownership or operation by Signalrestricting, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane the Fund, or Purchaser rendering the Fund unable, to acquire accept for payment, purchase or exercise full rights pay for some or all of ownership of the Shares, including, without limitation, or otherwise directly or indirectly relating in any manner to or affecting the right to vote such Shares on all matters properly presented to the stockholders of Signal;Offer; or
(b) any statute, rule, regulation, judgment, regulation or order or injunction shall be sought, proposed, enacted, promulgated, entered, enforced, promulgated enforced or deemed or become applicable to the Offer and/or the Merger, or any other action shall be taken have been taken, proposed or threatened, by any Governmental Authority government, governmental authority or other regulatory or administrative agency or commission or court, or any other than person, domestic or foreign, that, in the application to reasonable judgment of the Offer or the Merger of applicable waiting periods under the HSR ActFund, that is reasonably likely to resultmight, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iii) of subsection paragraph (a) above;; or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modifiedany general suspension of, or changed its approval limitation on times or recommendation prices for, trading in respect of securities on any national securities exchange or in the Merger Agreement, over-the Merger counter market or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaserany securities exchange in Brazil, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates or Brazil, (yiii) a commencement of a war, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States oror Brazil, (iv) any limitation (whether or not mandatory) by any governmental authority on, or any other event which, in the reasonable judgment of the Fund, might affect, the extension of credit by banks or other lending institutions or foreign currency transactions by such institutions or (v) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, in the reasonable judgment of the Fund, a material acceleration or worsening thereof; or
(d) any change (or acceleration thereofany condition, event or (zdevelopment involving a prospective change) shall have occurred or be threatened in the general economic, financial, currency exchange or market conditions in the United States, in Brazil or abroad that, in the reasonable judgment of the Fund, has or may have a material limitation adverse effect upon the value of the assets of the Fund; or
(whether e) any other event shall have occurred or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, condition shall exist which in the case judgment of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in the Fund would have a material adverse effect on the date Fund, its assets or its shareholders or any such event will occur or such condition shall exist if the Fund were to purchase Shares in the Offer which in the sole judgment of the Merger Agreement Fund with respect to each and every matter referred to above and regardless of the circum stances (i.e.including any action or inaction by the Fund) giving rise to any such condition, April 16, 2003)makes it inadvisable to proceed with the Offer or with such acceptance for payment or payment. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser the Fund and may be asserted by Crane or Purchaser the Fund regardless of the circumstances circum stances (including any action or inaction by the Fund) giving rise to any such conditions and or may be waived by Crane or Purchaser, by express and specific action to that effect, the Fund in whole or in part, part at any time and from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or Purchaser the Fund 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, right which may be asserted at any time and from time to time. Any determination by the Fund concerning the events described in this Section shall be final and binding on all parties. A public announcement shall be made of a material change in, or waiver of, such conditions, and the Offer may, in certain circumstances, be extended in connection with any such change or waiver.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 15, capitalized terms used but not defined herein will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions provision of the Offer, the Purchaser shall not be required to accept for payment or, subject to any the applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares tendered pursuant to the Offer if Offer, unless (i) there the Minimum Tender Condition shall not have been validly tendered and not withdrawn satisfied; (ii) the Regulatory Condition shall have been satisfied; (iii) the Purchaser shall have received prior to the expiration of the Offer that number a certificate signed by the Chief Executive Officer and the principal accounting officer of Shares whichEncysive, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority dated as of the date of the scheduled expiration date of the Offer, to the effect that none of the conditions set forth in paragraphs (e) or (f) below exist; and (iv) at the then total issued and outstanding Shares (assuming, for this purpose, the exercise effective date of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more none of the following events conditions shall have occurredexist:
(a) there shall be instituted any injunction, judgment, ruling, order, decree, action, proceeding or be litigation instituted, issued, entered, commenced or pending by any person or Governmental Authority any suit, action that would or proceeding that seeks or is reasonably likely to prevail (i) challenging restrain, enjoin, prevent, prohibit or seeking to restrain make illegal the acceptance for payment, payment for or prohibit purchase of some or all of the making Shares by Purchaser or Pfizer or the consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the MergerTransactions, (ii) seeking to prohibit or materially limit impose limitations on the ownership or operation by Signalability of Purchaser, Crane Pfizer or any of their respective subsidiaries Affiliates effectively to exercise full rights of a material portion ownership of the businessShares, operations including, without limitation, the right to vote the Shares purchased by them on all matters properly presented to Encysive’s stockholders on an equal basis with all other stockholders (including, without limitation, the adoption of the Merger Agreement and approval of the Transactions), (iii) restrain, enjoin, prevent, prohibit or make illegal, or impose material limitations on, Pfizer’s, Purchaser’s or any of their Affiliates’ ownership or operation of all or substantially all of the businesses and assets of Signal Encysive and Encysive’s Subsidiaries, taken as a whole, or, as a result of the Transactions, of Pfizer and Encysive’s Subsidiaries, taken as a whole, (iv) compel Pfizer, Purchaser or Crane and/or its subsidiaries any of their Affiliates to dispose of any Shares or, as a result of the Transactions, compel Pfizer, Purchaser or to compel Signal or Crane any of their Affiliates to dispose of or hold separate any material portion of the business businesses or assets of Signal Encysive and Encysive’s Subsidiaries taken as a whole, or Crane and/or of Pfizer and its subsidiaries Subsidiaries, taken as a whole, or (v) impose material damages on Pfizer, Encysive or any of their respective Subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of SignalTransactions;
(b) any statute, rule, regulation, judgment, order or injunction there shall be any Law enacted, enteredissued, enforcedpromulgated, promulgated amended or deemed applicable to the Offer and/or the Merger, or any other action shall be taken enforced by any Governmental Authority applicable to (i) Pfizer, Encysive or court, any of their respective Affiliates or (ii) the Transactions (other than the routine application to the Offer or the Merger of applicable waiting periods under the HSR Act, periods) that is reasonably likely to result, results directly or indirectly, in any of the consequences described referred to in clauses (i) through (iii) of subsection paragraph (a) above;
(cA) since February 20, 2008, there shall have occurred any event, change, or development of a state of facts that, individually or in the aggregate, has had or would reasonably be expected to have, a Company Material Adverse Effect or (B) Encysive or any Ensysive subsidiary shall have become subject to Voluntary Bankruptcy or Involuntary Bankruptcy. Involuntary Bankruptcy means, with respect to Signal;
Encysive or an Encysive subsidiary, without the consent or acquiescence of Encysive or such Encysive subsidiary, respectively, the entering of an order for relief or approving a petition for relief or reorganization or any other petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or other similar relief under any present or future bankruptcy, insolvency or similar Law, or the filing of any such petition against Encysive or such Encysive subsidiary, respectively, or, without the consent or acquiescence of Encysive or an Encysive subsidiary, respectively, the entering of an order appointing a trustee, custodian, receiver or liquidator of Encysive or such Encysive subsidiary, respectively, or of all or substantially all of the property of Encysive or such Encysive subsidiary, respectively, in each case where such petition or order shall remain unstayed or shall not have been stayed or dismissed within 90 days from the entry thereof. Voluntary Bankruptcy means, with respect to Encysive or an Encysive subsidiary, (i) a general assignment by Encysive or such Encysive subsidiary, respectively, for the Board benefit of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchasercreditors, (ii) the Board filing of Directors any petition or answer by the Encysive or an 27 Table of Signal shall have recommended Contents Encysive subsidiary, respectively, seeking to adjudicate itself as bankrupt or insolvent, or seeking for itself any Competing Transactionliquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of Encysive or such Encysive subsidiary, respectively, or its debts under any bankruptcy, insolvency, receivership, winding up, liquidation, reorganization, examination, relief of debtors or other similar Law now or hereafter in effect, or seeking, consenting to or acquiescing in the entry of an order for relief in any case under any such Law, or the appointment of or taking possession by a receiver, trustee, custodian, liquidator, examiner, sequestrator or other similar official for Encysive or an Encysive subsidiary, respectively, or for all or substantially all of its property, or (iii) Signal shall have violated corporate or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regardingother entity action taken by Encysive or an Encysive subsidiary, among other thingsrespectively, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take authorize any of the foregoing actionsactions set forth above;
(d) a Company Adverse Recommendation Change shall have occurred;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(fA) any of the representations and warranties of Signal Encysive set forth in the Merger Agreement (other than the representations and warranties of Encysive set forth in Sections 3.2(a)-(c), 3.3(a), 3.3(b), 3.9, or 3.11 thereto ) shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if of the date of the Merger Agreement and as of such representations and warranties were made at the time of any such determinationtime, except to the extent such representations and warranties expressly relate to an earlier date time (in which case on and as of such dateearlier time); provided, that the condition described in this clause (f) shall be deemed not without regard to have been triggered so long as the failure of all materiality or Company Material Adverse Effect qualifiers contained therein, other than for such representations and warranties so failures to be true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect on Signal or prevent (B) the representations and warranties of Encysive set forth in Sections 3.2(a)-(c), 3.3(a), 3.3(b), or materially delay the consummation 3.9 or 3.11 of the OfferMerger Agreement shall not be true and correct in all material respects as of the date of the Merger Agreement and as of such time;
(gf) Signal Encysive shall have failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of its obligations required Encysive to be performed or complied with by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured such time; or, with respect to a failure that is curable, has not been cured within twenty
(20g) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g)have been terminated in accordance with its terms; provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States orwhich, in the case sole and reasonable judgment of Purchaser or Pfizer, in any of the foregoing occurrences existing on such case, makes it inadvisable to proceed with such acceptance for payment or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003)payment. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Pfizer and the Purchaser and may be asserted by Crane either of them regardless or Purchaser regardless of the circumstances giving rise to any such conditions and or may be waived by Crane Pfizer or the Purchaser, by express and specific action to that effect, in whole or in part, part at any time and from time to time in their the sole discretiondiscretion of Pfizer or the Purchaser (except for any condition which, in each case, subject pursuant to any applicable provisions Section 1.1 of the Merger Agreement, may only be waived with Encysive’s consent). The failure by Crane Pfizer, the Purchaser or Purchaser any other affiliate of Pfizer at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Offer to Purchase (Pfizer Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions term of the OfferOffer or the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer if unless (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents which would represent at least a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have on a per share exercise price of less than $13.25)fully diluted basis, (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall not have expired or been terminated prior and (iii) the period of time for any applicable review process by CFIUS under the Exon-▇▇▇▇▇▇ Act shall have expired and CFIUS shall not have taken any action or made any recommendation to the expiration President of the United States to block or prevent the consummation of the Offer or the Merger. Furthermore, notwithstanding any other term of the Offer or the Merger Agreement, the Purchaser shall not be required to commence the Offer, accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate or amend the Offer, (iiix) with the consent of the Company or (y) without the consent of the Company if, at any time on or after the date of the Merger Agreement and prior to any before the acceptance of such shares for payment or the payment for any Shares pursuant to the Offertherefor, any one or more of the following events shall have occurredconditions exists:
(a) there shall be instituted pending or be pending by any person or Governmental Authority threatened any suit, action or proceeding by any Governmental Entity (as defined in the Merger Agreement), or by any other person that is reasonably likely to prevail has a reasonable likelihood of success, (i) challenging the acquisition by Parent or the Purchaser of any Common Stock, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or any other Transaction, or seeking to substantially deprive Crane of obtain from the Company, Parent or the Purchaser or any of its anticipated benefits of their respective subsidiaries or affiliates any damages that are material in relation to the MergerCompany and the Company Subsidiaries (as defined in the Merger Agreement) taken as whole, (ii) seeking to prohibit or materially limit the ownership or operation by Signalthe Company, Crane Parent or any of their respective subsidiaries of a any material portion of the business, operations business or assets of Signal the Company, Parent or Crane and/or its any of their respective subsidiaries or affiliates, or to compel Signal the Company, Parent or Crane any of their respective subsidiaries or affiliates to dispose of or hold separate any material portion of the business or assets of Signal the Company, Parent or Crane and/or its any of their respective subsidiaries or affiliates, as a result of the Offer or Offer, the Merger or any other Transaction, (iii) seeking to impose material limitations on the ability of Crane Parent or the Purchaser to acquire or hold, or exercise full rights of ownership of of, any Shares, including, without limitation, including the right to vote such Shares the Company Common Stock purchased by it on all matters properly presented to the stockholders shareholders of Signalthe Company, or (iv) seeking to prohibit Parent or any of its subsidiaries from effectively controlling in any material respect the business or operations of the Company and the Company Subsidiaries;
(b) any statute, rule, regulation, legislation, interpretation, judgment, order or injunction shall be enacted, entered, enforced, promulgated promulgated, amended or issued with respect to, or deemed applicable to the Offer and/or the Mergerto, or any consent or approval withheld with respect to, (i) Parent, the Company or any of their respective subsidiaries or affiliates or (ii) the Offer, the Merger or any other action shall be taken Transaction, in either such case by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, Entity that is reasonably likely to result, directly or indirectly, in any of the consequences described referred to in clauses (i) through (iii) of subsection paragraph (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) since the Board date of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect execution of the Merger Agreement, there shall have been any event, change, effect or development that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect (as defined in the Merger Agreement), other than any event, change, effect or development to the extent attributable to (i) the economy or the securities markets in general, (ii) the Merger Agreement or the transactions contemplated hereby or the announcement thereof or (iii) the Company's industry in general, and not specifically relating to the Company or the Company Subsidiaries;
(d) (i) it shall have been publicly disclosed or Parent shall have otherwise learned that beneficial ownership (determined for the purposes of this paragraph as set forth in Rule 13d-3 promulgated under the Exchange Act) of more than 35% of the outstanding Shares has been acquired by another person or (ii)(A) the Company or any of its directors or officers shall have breached Section 5.02 of the Merger Agreement (other than an immaterial breach), (B) the Board shall have withdrawn or modified its approval or recommendation of the Transaction Agreements, the Offer or the Merger, (C) the Company or any of its directors or officers shall have made any disclosure to the shareholders of the Company permitted pursuant to Section 5.02(d) of the Merger Agreement that has the effect of (x) withdrawing, modifying or changing the approval or recommendation of the Board or any committee thereof of the Transaction Agreements, the Offer, the Merger or the Offer other Transactions in a manner adverse to Parent or the Purchaser, (y) approving or recommending to the shareholders of the Company a Company Takeover Proposal or (z) approving or recommending that the shareholders of the Company tender their Shares into any tender offer or exchange offer that is a Company Takeover Proposal or is related thereto, or (D) the Board shall have failed to reaffirm publicly and unconditionally its recommendation to the Company's shareholders that they accept the Offer and give the Company Shareholder Approval by midnight, New York City time, on the third business day following Parent's written request to do so (which request may be made at any time that a Company Takeover Proposal is pending), which public reaffirmation must also include the unconditional rejection of such Company Takeover Proposal;
(e) any representation or warranty of the Company in any Transaction Agreement that is qualified as to materiality shall not be true and correct or any such representation or warranty that is not so qualified shall not be true and correct in any material respect, as of the date of the Merger Agreement and as of the scheduled or extended expiration of the Offer, except to the extent such representation or adverse warranty expressly relates to Crane or Purchaser, an earlier date (iiin which case on and as of such earlier date);
(f) the Board of Directors of Signal Company shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached failed to perform in any material respect any of its obligations under Section 6.05 obligation or to comply in any material respect with any agreement or covenant of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), Company to be performed or (iv) the Board of Directors of Signal shall have resolved to take complied with by it under any of the foregoing actions;Transaction Agreement; or
(eg) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane the Purchaser and Purchaser Parent and may be asserted by Crane the Purchaser or Purchaser Parent regardless of the circumstances giving rise to any such conditions and condition or may be waived by Crane or Purchaser, by express the Purchaser and specific action to that effect, Parent in whole or in part, part at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane Parent, the Purchaser or Purchaser any other affiliate of Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Acquisition Agreement (Tripoint Global Communications Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions Consummation of the OfferOffer is conditioned upon satisfaction of the Minimum Condition. Furthermore, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c14e-l(c) promulgated under the Exchange ActAct relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer, pay for, and may delay the acceptance for any Shares tendered pursuant payment of, or subject to the restrictions referred to above, the payment for, any tendered Shares, and may amend the Offer if (i) there shall not have been validly tendered and not withdrawn prior to consistent with the expiration terms of the Offer that number of Shares whichMerger Agreement, when added to including extending the deadline for tendering Shares, or terminate the Offer, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares following events shall occur:
(assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (iiA) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after from the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to until the OfferTender Offer Purchase Time, any one or more of the following events there shall have occurred:
occurred any change, event, occurrence or circumstance which, individually or in the aggregate, has a Material Change (a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that as such term is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or defined in the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (iiAgreement) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of SignalCompany;
(bB) from the date of the Merger Agreement until the Tender Offer Purchase Time, any governmental entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgmentexecutive order, decree, injunction or other order (and if temporary or injunction shall be enactedpreliminary, enterednot vacated within five (5) business days of its entry), enforced, promulgated or deemed applicable except with regard to HSR Act approval which is in effect at the Tender Offer and/or Purchase Time and which (1) makes the Mergeracceptance for payment of, or any other action shall be taken by any Governmental Authority the payment for, some or courtall of the Shares illegal or otherwise prohibits or restricts consummation of the Offer, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described other transactions contemplated thereby, (2) imposes material limitations on the ability of Parent, IBA GP or Purchaser to acquire or hold or to exercise any rights of ownership of the Shares, or effectively to manage or control the Company and its business, assets and properties or (3) would result in clauses a Material Change to the Company; PROVIDED, HOWEVER, that the parties shall use reasonable efforts to cause any such decree, judgment or other order to be vacated or lifted as soon as practicable;
(C) the representations and warranties of the Company set forth in the Merger Agreement shall not (i) through have been true and correct in one or more material respects on the date hereof or (iiiii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation except for certain representation and warranties designated in respect Section 7.1 of the Merger Agreement, be true and correct in one or more material respects as of the scheduled Expiration Date (as such date may be extended) of the Offer as though made on or as of such date or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by the Merger Agreement to be performed or complied with by it except, in each case with respect to clause (ii), (1) for changes specifically permitted by the Merger Agreement and (2) (x) for those representations and warranties that address matters only as of a particular date which are true and correct as of such date or (y) where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the Offer performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate result in a manner adverse Material Change to the Merger or Company;
(D) from the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 date of the Merger Agreement (regardinguntil the Tender Offer Purchase Time, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(fE) from the date of the Merger Agreement until the Tender Offer Purchase Time, the Board of Directors of the Company or any committee thereof shall have (1) withdrawn or modified (including without limitation, by amendment of the Company's Schedule 14D-9) in a manner adverse to Parent or Purchaser its approval or recommendation of the Offer, the Merger or the Agreement, (2) approved or recommended any Acquisition Proposal by a third party other than the Offer and the Merger, (3) resolved to do any of the representations and warranties foregoing, or (4) upon a request to reaffirm the Company's approval or recommendation of Signal set forth in the Offer, the Merger Agreement or the Merger, the Board of Directors of the Company shall fail to do so within two business days after such request is made;
(F) from the date of the Merger Agreement until the Tender Offer Purchase Time, any of the consents, approvals, authorizations, orders or permits required to be obtained by the Company, Parent, IBA GP or Purchaser, or their respective subsidiaries in connection with the Offer or the Merger from, or filings or registrations required to be made by any of the same prior to the Tender Offer Purchase Time with, any governmental entity in connection with the execution, delivery and performance of the Merger Agreement (including without limitation the termination or expiration of any applicable waiting period or the receipt of any required clearance under the HSR Act) shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as obtained or made or shall have been obtained or made subject to conditions or requirements, which (A) make the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal acceptance for payment of, or prevent the payment for the Shares illegal or materially delay otherwise prohibits or restricts the consummation of the Offer;Offer or the Merger or (B) have a Parent Material Adverse Effect (as defined in the Merger Agreement) or result in a Material Change to the Company or (C) impose material limitations on the ability of Parent, IBA GP or Purchaser effectively to manage or control the Company; or
(gG) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under from the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 date of the Merger Agreement until the Tender Offer Purchase Time, in the case of HSR Act approval, any governmental entity or court of competent jurisdiction shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal have entered a final non-appealable order enjoining consummation of the provisions of Section 2.04(aMerger.
(H) (other than from the first sentence thereof, which has no cure period) date of the Merger AgreementAgreement until the Tender Offer Purchase Time, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, occurred (x1) a the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, States or in Belgium or (y2) a the commencement of a war, war or armed hostilities or other national or international calamity involving the United States or, or Belgium and resulting in a Material Change to the case of any Company or materially adversely affecting (or materially delaying) the consummation of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). Offer The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14"Offer Conditions") are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, part at any time and from time to time in their the sole discretion, in each case, subject to any applicable provisions discretion of the Merger AgreementPurchaser. The failure by Crane or 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, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions term or provision of the Offer, the Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c14e-l(c) promulgated under the Exchange ActAct (relating to a bidder's obligation to pay for or return tendered securities promptly after the termination or withdrawal of such bidder's offer), to pay for any Shares tendered not theretofore accepted for payment or paid for, and may terminate the Offer, unless (1) the Minimum Condition shall have been satisfied, (2) the Control Share Condition shall have been satisfied, (3) the Business Combination Condition shall have been satisfied and (4) any waiting period under the HSR Act applicable to the purchase of Shares pursuant to the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration terminated. Furthermore, notwithstanding any other term or provision of the Offer, the Purchaser will not be required to accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate or amend the Offer or (iii) if, at any time on or after the date Applicable Date (March 5, 1996), and before the acceptance of such Shares for payment or, subject to any applicable rules and regulations of the Merger Agreement and prior to any acceptance for Commission, the payment or payment for any Shares pursuant to the Offertherefor, any one or more of the following events or facts shall have occurred:
(a) there shall be threatened, instituted or be pending any action, proceeding, application or counterclaim by any person government or governmental, regulatory or administrative authority or agency, domestic, foreign or supranational (each, a "Governmental Entity"), or by any other person, before any court or Governmental Authority Entity, (i)(A) challenging or seeking to, or which is reasonably likely to, make illegal, delay or otherwise directly or indirectly restrain or prohibit, or seeking to, or which is reasonably likely to, impose voting, procedural, price or other requirements, in addition to those required by Federal securities laws and the ORC, in connection with, the making of the Offer, the acceptance for payment of, or payment for, some of or all the Shares by the Purchaser, Parent or any suitother affiliate of Parent or the consummation by the Purchaser, action Parent or proceeding that any other affiliate of Parent of a merger or other similar business combination with the Company, (B) seeking to obtain, or which is reasonably likely to prevail result in, material damages or (iC) challenging otherwise directly or seeking indirectly relating to restrain or prohibit the making or consummation of transactions contemplated by the Offer or the Merger any such merger or to substantially deprive Crane of any of its anticipated benefits of the Mergerbusiness combination, (ii) seeking to to, or which is reasonably likely to, prohibit or materially limit the ownership or operation by Signalthe Purchaser, Crane Parent or any other affiliate of their respective subsidiaries Parent of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or the Company and its subsidiaries as a result or of the Offer Purchaser, Parent or any other affiliate of Parent or to compel the Merger Purchaser, Parent or any other affiliate of Parent to dispose of or hold separate all or any portion of the business or assets of the Company or any of its subsidiaries or of the Purchaser, Parent or any other affiliate of Parent or seeking to impose, or which is reasonably likely to result in, any limitation on the ability of the Purchaser, Parent or any other affiliate of Parent to conduct such business or own such assets, (iii) seeking to to, or which is reasonably likely to, impose material limitations on the ability of Crane the Purchaser, Parent or Purchaser any other affiliate of Parent effectively to acquire or exercise full rights of ownership of the Shares, including, without limitation, the right to vote such any Shares acquired or owned by the Purchaser, Parent or any other affiliate of Parent on all matters properly presented to the stockholders Company's shareholders, (iv) seeking to, or which is reasonably likely to, require divestiture by the Purchaser, Parent or any other affiliate of SignalParent of any Shares, (v) seeking, or which is reasonably likely to result in, any material diminution in the benefits expected to be derived by the Purchaser, Parent or any other affiliate of Parent as a result of the transactions contemplated by the Offer or any merger or other similar business combination with the Company, (vi) otherwise directly or indirectly relating to the Offer or which otherwise, in the sole judgment of the Purchaser, might materially adversely affect the Company or any of its subsidiaries or the Purchaser, Parent or any other affiliate of Parent or the value of the Shares or (vii) in the sole judgment of the Purchaser, materially adversely affecting the business, properties, assets, liabilities, capitalization, shareholders' equity, condition (financial or otherwise), operations, licenses or franchises, results of operations or prospects of the Company or any of its subsidiaries;
(b) there shall be any action taken, or any statute, rule, regulation, legislation, interpretation, judgment, order or injunction shall be proposed, enacted, entered, enforced, promulgated promulgated, amended, issued or deemed applicable to (i) the Offer and/or the MergerPurchaser, Parent or any other action shall be taken affiliate of Parent or the Company or any of its subsidiaries or (ii) the Offer or any merger or other similar business combination by the Purchaser, Parent or any other affiliate of Parent with the Company, by any Governmental Authority government, legislative body or court, domestic, foreign or supranational, or Governmental Entity, other than the routine application of the waiting period provisions of the HSR Act to the Offer or Offer, that, in the Merger sole judgment of applicable waiting periods under the HSR ActPurchaser, that is reasonably likely to resultmight, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iiivii) of subsection paragraph (a) above;
(c) any change (or any condition, event or development involving a prospective change) shall have occurred or been threatened in the business, properties, assets, liabilities, capitalization, shareholders' equity, condition (financial or otherwise), operations, licenses or franchises, results of operations or prospects of the Company or any of its subsidiaries that, in the sole judgment of the Purchaser, is or may be materially adverse to the Company or any of its subsidiaries, or the Purchaser shall have become aware of any facts that, in the sole judgment of the Purchaser, have or may have material adverse significance with respect to either the value of the Company or any of its subsidiaries or the value of the Shares to the Purchaser, Parent or any other affiliate of Parent;
(d) there shall have occurred a Material Adverse Effect with respect to Signal;
or been threatened (i) the Board any general suspension of Directors of Signal shall have withdrawn, modifiedtrading in, or changed its approval limitation on prices for, securities on any national securities exchange or recommendation in respect of the Merger Agreement, over-the-counter market in the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or PurchaserUnited States, (ii) any extraordinary or material adverse change in the Board financial markets or major stock exchange indices in the United States or abroad or in the market price of Directors of Signal shall have recommended any Competing TransactionShares, (iii) Signal shall any change in the general political, market, economic or financial conditions in the United States or abroad that could, in the sole judgment of the Purchaser, have violated a material adverse effect upon the business, properties, assets, liabilities, capitalization, shareholders' equity, condition (financial or breached in any material respect otherwise), operations, licenses or franchises, results of operations or prospects of the Company or any of its obligations under Section 6.05 of subsidiaries or the Merger Agreement (regarding, among other things, solicitation of Competing Transactions)trading in, or value of, the Shares, (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed material change in writing to terminate the OfferUnited States currency exchange rates or any other currency exchange rates or a suspension of, or limitation on, the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to existmarkets therefor, (xv) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yvi) any limitation (whether or not mandatory) by any government, domestic, foreign or supranational, or Governmental Entity on, or other event that, in the sole judgment of the Purchaser, might affect, the extension of credit by banks or other lending institutions, (vii) a commencement of a war, war or armed hostilities or other national or international calamity directly or indirectly involving the United States or, or (viii) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof;
(e) the Company or any of its subsidiaries shall have (i) split, combined or otherwise changed, or authorized or proposed a split, combination or other change of, the Shares or its capitalization, (ii) acquired or otherwise caused a reduction in the number of, or authorized or proposed the acquisition or other reduction in the number of, outstanding Shares or other securities, (iii) issued or sold, or authorized or proposed the issuance, distribution or sale of, additional Shares (other than the issuance of Shares under option prior to the Applicable Date in accordance with the terms of such options as publicly disclosed prior to the Applicable Date), shares of any other class of capital stock, other voting securities or any securities convertible into, or rights, warrants or options, conditional or otherwise, to acquire, any of the foregoing, (iv) declared or paid, or proposed to declare or pay, any dividend (other than regular quarterly cash dividends not to exceed $0.13 per Common Share and $0.45 per Preferred Share) or other distribution, whether payable in cash, securities or other property, on or with respect to any shares of capital stock of the Company, (v) altered or proposed to alter any material term of any outstanding security, (vi) incurred any debt other than in the ordinary course of business or any debt containing burdensome covenants, (vii) authorized, recommended, proposed or entered into an agreement with respect to any merger, consolidation, liquidation, dissolution, business combination, acquisition of assets, disposition of assets, release or relinquishment of any material contractual or other right of the Company or any of its subsidiaries or any comparable event not in the ordinary course of business, (viii) authorized, recommended, proposed or entered into, or announced its intention to authorize, recommend, propose or enter into, any agreement or arrangement with any person or group that in the sole judgment of the Purchaser could adversely affect either the value of the Company or any of its subsidiaries or the value of the Shares to the Purchaser, Parent or any other affiliate of Parent, (ix) entered into any employment, severance or similar agreement, arrangement or plan with or for the benefit of any of its employees other than in the ordinary course of business or entered into or amended any agreements, arrangements or plans so as to provide for increased or accelerated benefits to the employees as a result of or in connection with the transactions contemplated by the Offer, (x) except as may be required by law, taken any action to terminate or amend any employee benefit plan (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended) of the Company or any of its subsidiaries, or the Purchaser shall have become aware of any such action that was not disclosed in publicly available filings prior to the Applicable Date, (xi) amended, or authorized or proposed any amendment to, its articles of incorporation or its regulations (other than an amendment to make the Ohio Control Share Acquisition Law inapplicable), or the Purchaser shall become aware that the Company or any of its subsidiaries shall have proposed or adopted any such amendment that was not disclosed in publicly available filings prior to the Applicable Date or (xii) otherwise acted out of the ordinary course of business, consistent with past practice;
(f) a tender or exchange offer for any Shares shall have been made or publicly proposed to be made by any other person (including the Company or any of its subsidiaries or affiliates), or it shall have been publicly disclosed or the Purchaser shall have otherwise learned that (i) any person, entity (including the Company or any of its subsidiaries) or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) shall have acquired or proposed to acquire beneficial ownership of more than 5% of any class or series of capital stock of the Company (including the Shares), through the acquisition of stock, the formation of a group or otherwise, or shall have been granted any right, option or warrant, conditional or otherwise, to acquire beneficial ownership of more than 5% of any class or series of capital stock of the Company (including the Shares), other than acquisitions for bona fide arbitrage purposes only and other than as disclosed in a Schedule 13G on file with the Commission prior to the Applicable Date, (ii) any such person, entity or group that prior to the Applicable Date, had filed such a Schedule with the Commission has acquired or proposes to acquire, through the acquisition of stock, the formation of a group or otherwise, beneficial ownership of 1% or more of any class or series of capital stock of the Company (including the Shares), or shall have been granted any right, option or warrant, conditional or otherwise, to acquire beneficial ownership of 1% or more of any class or series of capital stock of the Company (including the Shares), (iii) any person or group shall have entered into a definitive agreement or an agreement in principle or made a proposal with respect to a tender offer or exchange offer or a merger, consolidation or other business combination with or involving the Company or (iv) any person shall have filed a Notification and Report Form under the HSR Act (or amended a prior filing to increase the applicable filing threshold set forth therein) or made a public announcement reflecting an intent to acquire the Company or any assets or subsidiaries of the Company;
(g) the Purchaser shall become aware (i) that any contractual right of the Company or any of its subsidiaries shall be impaired or otherwise adversely affected or that any amount of indebtedness of the Company or any of its subsidiaries shall become accelerated or otherwise become due or become subject to acceleration thereofprior to its stated due date, in any case with or without notice or the lapse of time or both as a result of or in connection with the transactions contemplated by the Offer or the Proposed Merger or any other business combination involving the Company, which, in the aggregate, would be material, (ii) of any covenant, term or condition in any of the Company's or any of its subsidiaries' instruments or agreements that has or may have, in the aggregate, a material adverse effect on (x) the business, properties, assets, liabilities, capitalization, shareholders' equity, condition (financial or otherwise), operations, management, key personnel, licenses, franchises, results of operations or prospects of the Company or any of its subsidiaries (including, but not limited to, any event of default that may result from the consummation of the Offer, the acquisition of control of the Company or any of its subsidiaries or the Proposed Merger or any other business combination involving the Company) or (y) the value of the Shares in the hands of Parent, the Purchaser or any of their respective affiliates or (z) the consummation by Parent, the Purchaser or any of their respective affiliates of the Offer and the Proposed Merger or any other business combination involving the Company or (iii) that any report, document or instrument of the Company or any of its subsidiaries filed with the Commission contained, when filed, an untrue statement of a material limitation fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading or that the Company or any of its subsidiaries shall have failed to file any such report, document or instrument;
(whether h) any approval, permit, authorization, favorable review or not mandatory) by consent of any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions Entity (including those set forth described or referred to in clauses Section 15) shall not have been obtained on terms satisfactory to Purchaser in its sole discretion; or
(i) and (ii) the Purchaser shall have reached an agreement or understanding with the Company providing for termination of the initial paragraph Offer, or the Purchaser, Parent or any other affiliate of this Section 14) are Parent shall have entered into a definitive agreement or announced an agreement in principle with the Company providing for a merger or other business combination with the sole benefit Company or the purchase of Crane and Purchaser and may be asserted by Crane stock or Purchaser regardless assets of the circumstances giving rise to any such conditions and may be waived by Crane or PurchaserCompany; which, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.in
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for any Shares tendered pursuant payment of or, subject to the restriction referred to above, the payment for, any tendered Shares, and may amend the Offer consistent with the terms of the Merger Agreement or terminate the Offer and not accept for payment any tendered Shares, if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that such number of Shares which, when added to the Shares, if any, previously acquired owned by Purchaser Parent or Crane or any of their respective affiliatesthe Purchaser, represents a majority would constitute at least two-thirds of the then total issued and Shares outstanding Shares on a fully diluted basis (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25"Minimum Condition"), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall has not have expired or been terminated prior to the expiration of the Offer terminated, or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the expiration of the Offer, any one or more of the following events shall have occurredoccur:
(a) there shall be instituted threatened by a Governmental Entity (as defined in the Merger Agreement) or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) seeking to prohibit or impose any material limitations on Parent's or the Purchaser's ownership or operation (or that of any of their respective Subsidiaries or Affiliates (as such terms are defined in the Merger Agreement)) of all or a material portion of their or the Company's businesses or assets, (ii) seeking to compel Parent or the Purchaser or their respective Subsidiaries and Affiliates to dispose of or hold separate any material portion of the business or assets of the Company or Parent and their respective Subsidiaries, in each case taken as a whole, (iii) challenging the acquisition by Parent or the Purchaser of any Shares pursuant to the Offer, (iv) seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane the performance of any of its anticipated benefits of the Mergerother Transactions (as defined in the Merger Agreement), (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iiiv) seeking to impose material limitations on the ability of Crane the Purchaser, or rendering the Purchaser unable, to acquire accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (vi) seeking to impose material limitations on the ability of the Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote such the Shares purchased by it on all matters properly presented to the stockholders of Signal;Company's shareholders; or
(b) there shall be any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken by any Governmental Authority or courtEntity, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described referred to in clauses (i) through (iiivi) of subsection paragraph (a) above;; or
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
and be continuing (i1) the Board any general suspension of Directors of Signal shall have withdrawn, modifiedtrading in, or changed its approval limitation on prices for, securities on the NASDAQ National Market System, for a period in excess of three hours (excluding suspensions or recommendation in respect of the Merger Agreement, the Merger limitations resulting solely from physical damage or the Offer in a manner adverse interference with such exchanges not related to the Merger or the Offer, or adverse to Crane or Purchasermarket conditions), (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x2) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates (whether or not mandatory), (y3) a the commencement of a war, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States, (4) any limitation or proposed limitation (whether or not mandatory) by any United States orgovernmental authority or agency that has a material adverse effect generally on the extension of credit by banks or other financial institutions, (5) any decline in the Dow ▇▇▇▇▇ Industrial Average, the Standard & Poor's Index of 500 Industrial Companies or the Nasdaq Composite Index by an amount in excess of 20% measured from the close of business on the date of the Merger Agreement or (6) in the case of any of the foregoing occurrences situations in clauses (1) through (5) inclusive, existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof; or
(d) the representations and warranties of the Company set forth in the Merger Agreement shall not be true and accurate as of the date of consummation of the Offer as though made on or acceleration thereofas of such date (except for those representations and warranties that address matters only as of a particular date or only with respect to a specific period of time which need only be true and accurate as of such date or with respect to such period) or the Company shall have breached or failed to perform or comply with any obligation, agreement or covenant required by the Merger Agreement to be performed or complied with by it except, in each case where the failure of such representations and warranties to be true and accurate (without giving effect to any limitation as to "knowledge," "materiality" or "material adverse effect" set forth therein), or the failure to perform or comply with such obligations, agreements or covenants, do not, individually or in the aggregate, have a Material Adverse Effect on the Company or a materially adverse effect on the ability to consummate the Offer or the Merger; or
(e) the Company Board (i) shall have withdrawn, or modified or changed in a manner adverse to Parent or Purchaser (including by amendment of the Schedule 14D-9) its recommendation of the Offer, the Merger Agreement, or the Merger, (ii) shall have recommended a Takeover Proposal, or (ziii) a material limitation shall have adopted any resolution to effect any of the foregoing;
(whether or not mandatoryf) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement shall have been terminated in accordance with its terms; or
(i.e.g) there shall have occurred any event or any development of a state of facts or circumstances that constitutes a Material Adverse Change or has a Material Adverse Effect (as such terms are defined in the Merger Agreement) on the Company, April 16which, 2003)in the sole judgment of Parent or the Purchaser, in any such case, and regardless of the circumstances (including any action or inaction by Parent or the Purchaser) giving rise to such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment of or payments for Shares. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Parent and the Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane Parent or the Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretiontime, in each case, subject to any applicable provisions the sole discretion of Parent or the Merger AgreementPurchaser. The failure by Crane Parent or the 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, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the OfferOffer or the Merger Agreement, Purchaser shall will not be required to accept for payment or, (subject to any applicable the rules and regulations of the SEC, including Rule 14e-1(cCommission) promulgated under the Exchange Act, to pay for any Shares tendered pursuant to in connection with the Offer Offer, if (i) there shall the Minimum Tender Condition has not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)satisfied, (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act and any Foreign Antitrust Law shall not have expired or been terminated prior to the expiration of the Offer or any required approval under any Foreign Antitrust Law shall not have been obtained or (iii) at any time on or after the date of the Merger Agreement and prior to any the acceptance of such Shares for payment or payment for any Shares pursuant to the Offersuch Shares, any one or more of the following events shall have occurredoccur or conditions shall exist:
(a) there shall be instituted have been any statute, rule, regulation, legislation, judgment, order or be pending injunction, promulgated, enacted, entered, enforced, issued, amended or deemed applicable by a Governmental Entity to Parent, Purchaser, the Company, any person other affiliate of Parent or Governmental Authority any suitthe Company, action the Offer or proceeding the Merger, that would or is reasonably likely to prevail (i) challenging make the acceptance for payment of, or seeking payment for or purchase of all or a substantial number of the Shares pursuant to restrain the Offer illegal, or otherwise materially restrict or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of result in a material portion delay in the ability of Purchaser to accept for payment, pay for or purchase all or a substantial number of the business, operations or assets of Signal or Crane and/or its subsidiaries or Shares pursuant to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or to effect the Merger or Merger, (iii) seeking render Purchaser unable to accept for payment or pay for or purchase all or a substantial number of the Shares pursuant to the Offer, (iv) impose material limitations on the ability of Crane Parent, Purchaser or Purchaser any of their respective subsidiaries or affiliates to acquire or hold, transfer or dispose of, or effectively to exercise full all rights of ownership of, all or a substantial number of Shares, including, without limitation, the Shares including the right to vote such the Shares purchased by it pursuant to the Offer on an equal basis with all other Shares on all matters properly presented to the stockholders of Signalthe Company, (v) require the divestiture by Parent, Purchaser or any of their respective subsidiaries or affiliates of any Shares, or require Purchaser, Parent, the Company, or any of their respective subsidiaries or affiliates to dispose of all or any material portion of their respective businesses, assets or properties or impose any material limitations on the ability of any of such entities to conduct their respective businesses or own such assets, properties or Shares or on the ability of Parent or Purchaser to conduct the business of the Company and its subsidiaries and own the assets and properties of the Company and its subsidiaries, or (vi) impose any material limitations on the ability of Parent, Purchaser or any of their respective subsidiaries or affiliates effectively to control the business or operations of the Company, Parent, Purchaser or any of their respective subsidiaries or affiliates;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(fc) any of the representations and warranties of Signal the Company set forth in the Merger Agreement shall not have been true and correct when made, or shall not continue to be true and correct except (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warrantyi) as if such those representations and warranties were made at the time that address matters only as of any such determination, except to the extent such representations and warranties expressly relate to an earlier a particular date (in which case shall be true and correct as of such date); provided, that the condition described in this clause and (fii) shall be deemed not to have been triggered so long as where the failure of all such representations and warranties so has not had, and is not reasonably likely to be true have, a material adverse effect on the business, financial condition or operations of the Company and correct would not have its subsidiaries taken as a whole, other than adverse effects from (i) conditions, circumstances or changes in the general economy or capital markets or (ii) any disclosure of the Merger Agreement (a "Material Adverse Effect on Signal or prevent or materially delay the consummation of the OfferEffect");
(gd) Signal the Company shall have failed to perform in any material respect, or to comply in any material respect with, any obligation, agreement or covenant of its obligations required the Company to be performed or complied with by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or;
(he) there shall have occurredoccurred (i) any general suspension of, and continued or limitation on trading in securities on the New York Stock Exchange (other than any suspension or limitation on trading in any particular security as a result of a computerized trading limit or any intraday suspension due to exist, "circuit breakers") or (xii) a the declaration of a any banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which institutions in the case of clauses United States; or
(x)f) there shall have occurred any change, (y) condition, event or (z) prevents Crane from borrowing money pursuant development that, individually or in the aggregate, has had or is reasonably likely to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003)have a Material Adverse Effect. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) described above are for the sole benefit of Crane Parent and Purchaser and may be asserted by Crane either of Parent or Purchaser regardless of the circumstances (including any action or inaction by Parent or Purchaser or any of their affiliates giving rise to any such conditions and may be condition) or waived by Crane Parent or Purchaser, by express and specific action to that effect, Purchaser in whole or in part, part at any time and or from time to time in their sole discretion, in each case, its discretion subject to any applicable provisions the terms and conditions of the Merger Agreement. The failure by Crane of Parent or Purchaser at any time to exercise any of the foregoing rights shall described above will not be deemed a waiver of any such right and each such right shall will be deemed an ongoing right, right which may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of any tendered Shares and, except as set forth in the Merger Agreement, amend or terminate the Offer as to any Shares tendered pursuant to the Offer not then paid for if (i) there the Minimum Condition shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)satisfied, (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date execution of the Merger Agreement and prior to before the time of payment for any acceptance such Shares (whether or not any Shares have theretofore been accepted for payment or payment paid for any Shares pursuant to the Offer), any one or more of the following events shall have occurred:
conditions exists: (aA) there shall be instituted in effect an injunction or be pending other order, decree, judgment or ruling by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission of competent jurisdiction or a statute, rule, regulation, executive order or other action shall have been promulgated, enacted, taken or threatened by a governmental authority or a governmental, regulatory or administrative agency or commission of competent jurisdiction which in any person such case (I) restrains or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit prohibits the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits consummation of the Merger, (iiII) seeking to prohibit prohibits or materially limit restricts the ownership or operation by Signal, Crane Parent or the Purchaser (or any of their respective subsidiaries affiliates or subsidiaries) of a material any portion of its or the business, operations Company's business or assets which is material to the business of Signal all such entities taken as a whole, or Crane and/or its subsidiaries compels Parent or to compel Signal the Purchaser (or Crane any of their respective affiliates or subsidiaries) to dispose of or hold separate any material portion of its or the Company's business or assets which is material to the business of Signal or Crane and/or its subsidiaries all such entities taken as a result of the Offer or the Merger or whole, (iiiIII) seeking to impose imposes material limitations on the ability of Crane or the Purchaser effectively to acquire or to hold or to exercise full rights of ownership of the Shares, including, without limitation, the right to vote such the Shares purchased by the Purchaser on all matters properly presented to the stockholders of Signal;
the Company, (bIV) imposes any statutematerial limitations on the ability of Parent or the Purchaser or any of their respective affiliates or subsidiaries effectively to control in any material respect the business and operations of the Company and its subsidiaries, rule, regulation, judgment, order or injunction (V) which otherwise would materially adversely affect the Company and its subsidiaries taken as a whole; or (B) there shall be enacted, entered, enforced, promulgated pending any litigation or deemed applicable to the Offer and/or the Merger, or any other action shall be taken proceeding brought by any Governmental Authority governmental entity or court, other than agency that seeks to impose any of the application effects referred to in paragraph (A) above or seeks material damages from the Company or Parent in connection with the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), Merger; or (ivC) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated by the Company, Parent or the Purchaser in accordance with its terms;
; or (fD) any of (I) the representations and warranties of Signal set forth made by the Company in the Merger Agreement that are qualified as to materiality shall not have been true and correct, or any such representations and warranties that are not so qualified shall not be true and correct (without regard to any materiality qualifications in all material respects, when made or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so ceased to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation in all material respects as of the Offer;
Expiration Date as if made as of such date, or (gII) Signal as of the Expiration Date the Company shall not in all material respects have failed to perform in any performed its material respect any of obligations and agreements and complied with its obligations required material covenants to be performed and complied with by it under the Merger Agreement at Agreement; or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(hE) there shall have occurredoccurred (I) any general suspension of, and continued to existor limitation on prices for, trading in securities on any national securities exchange or the over-the-counter market, (xII) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates (whether or not mandatory), (yIII) a the commencement of a war, armed hostilities or other international or national or international calamity directly involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x)States, (yIV) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) through the date of termination or expiration of the initial paragraph Offer, a decline of this Section 14) are for at least 25% in the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.Standard & 29
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser and in addition to (and not in limitation of) the Company's right to extend or otherwise amend the Offer at any time in its sole discretion, the Company shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay or make payment for any Shares tendered pursuant to Warrant tendered, and may terminate or amend the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to SharesOffer, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any before acceptance for payment or of payment for any Shares pursuant to the Offer, such Warrant any one or more of the following events shall have occurredoccurred or shall have been determined to have occurred by the Company, whose determination shall be conclusive:
(a) there shall be have been threatened, instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail by any government or governmental, regulatory or administrative agency or authority or tribunal or any other person, domestic or foreign, before any court or governmental, regulatory or administrative authority, agency or tribunal, domestic or foreign, which (i) challenging challenges or seeking seeks to restrain or prohibit challenge the making or consummation of the Offer, the purchase of Warrants pursuant to the Offer or otherwise relates in any manner to the Merger Offer; or to substantially deprive Crane (ii) in the sole judgment of the Company, could materially adversely affect the business, condition (financial or other), income, operations or prospects of the Company and its subsidiaries, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of the business of the Company or any of its anticipated benefits of the Merger, (ii) seeking to prohibit subsidiaries or materially limit impair the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented Offer's contemplated benefits to the stockholders of SignalCompany;
(b) there shall have been any action, threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction shall be threatened, proposed, sought, promulgated, enacted, entered, amended, enforced, promulgated or deemed to be applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger Company or any of applicable waiting periods under its subsidiaries, by any court or any government or governmental, regulatory or administrative authority, agency, tribunal, domestic or foreign, which in the HSR ActCompany's sole judgment, that is reasonably likely to result, would or might directly or indirectly, in any of the consequences described in clauses (i) through make the acceptance for payment of, or payment for, Warrants illegal or otherwise restrict or prohibit consummation of the Offer; (ii) delay or restrict the ability of the Company, or render the Company unable, to accept for payment, or pay for, Warrants; (iii) materially impair the contemplated benefits of subsection the Offer to the Company; or (aiv) abovematerially and adversely affect the business, condition (financial or other), income, operations or prospects of the Company and its subsidiaries, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of the business of the Company or any of its subsidiaries;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board any general suspension of Directors of Signal shall have withdrawn, modifiedtrading in, or changed its approval limitation on prices for, securities on any United States national securities exchange or recommendation in respect the over-the-counter market (excluding any coordinated trading halt triggered solely as a result of the Merger Agreement, the Merger or the Offer a specified decrease in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, market index); (ii) any significant decline in the Board market prices of Directors of Signal shall have recommended any Competing Transaction, equity securities in the United States or abroad; (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, ; (yiv) a the commencement of a war, armed hostilities or other international or national crisis directly or international calamity indirectly involving the United States; (v) any limitation (whether or not mandatory) by any governmental, regulatory or administrative agency or authority on, or any event which, in the sole judgment of the Company, might affect, the extension of credit by banks or other lending institutions in the United States; (vi) any change in the general political, market, economic or financial conditions in the United States oror abroad that could, in the sole judgment of the Company, have a material adverse effect on the Company's business, operations, prospects or the trading in the Warrants; or (vii) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof;
(d) any tender or acceleration thereofexchange offer with respect to the Warrants (other than the Offer) or any other class of the Company's equity securities or any merger, acquisition, business combination or (z) a material limitation (whether other similar transaction with or not mandatory) involving the Company or any subsidiary, shall have been proposed, announced or made by any Governmental Authority on unaffiliated person or entity;
(e) any change shall occur or be threatened in the extension business, condition (financial or other), income, operations or prospects of credit by banks or other lending institutionsthe Company and its subsidiaries, taken as a whole, which in the case sole judgment of clauses the Company, is or may be materially adverse to the Company; or
(x)f) it shall have been publicly disclosed or the Company shall have learned that (i) any person, entity or "group" (as that term is used in Section 13(d)(3) of the Exchange Act) shall have acquired, or proposed to acquire, beneficial ownership of more than 5% of the outstanding Common Stock (other than a person, entity, or "group" which had publicly disclosed such ownership in a Schedule 13D or 13G (or an amendment thereto) on file with the Commission prior to August 10, 1998, (yii) any such person or group that on or prior to August 10, 1998, had filed such a Schedule with the Commission thereafter shall have acquired or shall propose to acquire beneficial ownership of additional shares of Common Stock representing 2% or more of the outstanding Common Stock, (iii) any new group shall have been formed which beneficially owns more than 5% of the outstanding Common Stock or (ziv) prevents Crane from borrowing money pursuant any person, entity or group shall have filed a Notification and Report Form under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, or made a public announcement reflecting an intent to acquire the Company or any of its credit facilities subsidiaries or any of their respective assets or securities; and, in effect on the date sole judgment of the Merger Agreement Company, in any such case and regardless of the circumstances (i.e.including any action or inaction by the Company) giving rise to such condition, April 16, 2003)such event makes it inadvisable or undesirable to proceed with the Offer or with such acceptance for payment or payment. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser the Company and may be asserted or waived by Crane or Purchaser the Company regardless of the circumstances (including any action or inaction by the Company) giving rise to any such conditions condition, and any such condition may be waived by Crane or Purchaser, by express and specific action to that effectthe Company, in whole or in part, at any time and from time to time in their its sole discretion, in each caseprovided, subject however, that the Exchange Act and the rules and regulations promulgated thereunder require that all conditions to any applicable provisions the Offer, other than those relating to the receipt of certain necessary governmental approvals, must be satisfied or waived prior to the Merger AgreementExpiration Date. The Company's failure by Crane or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right or the waiver of any such right with respect to particular facts or circumstances, and each such right shall be deemed an ongoing right, right which may be asserted at any time and from time to time. Any determination by the Company concerning the events described above and any related judgment by the Company regarding the inadvisability of proceeding with the acceptance of payment or payment for any tendered Warrants will be final and binding on all parties.
Appears in 1 contract
Sources: Offer to Purchase (Audiovox Corp)
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 15, capitalized terms used but not defined herein will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions term of the OfferOffer or the Merger Agreement, Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser’s obligation to pay for or return tendered shares of Steinway common stock promptly after the termination or withdrawal of the Offer), pay for any Shares shares of Steinway common stock tendered pursuant to the Offer if unless:
(i) there shall not have the Minimum Tender Condition has been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), satisfied;
(ii) the Financing Proceeds Condition has been satisfied;
(iii) the Rights Plan Condition has been satisfied;
(a) any applicable waiting period (and or any extension(s) extension thereof) under the HSR Act relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger shall not have expired or otherwise been terminated prior and (b) the affirmative approval or clearance of governmental authorities required under Antitrust Laws of Germany relating to the expiration purchase of Shares pursuant to the Offer and the consummation of the Merger shall have been obtained (the “Antitrust Condition”);
(v) no governmental authority shall have enacted, issued, promulgated, enforced or entered any law or order which is then in effect and has the effect of enjoining or otherwise prohibiting the making of the Offer or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more of the following events shall have occurred:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane Merger; Table of any of its anticipated benefits of the Merger, Contents (iivi) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect Steinway contained in any specific representation or warranty(A) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date Section 4.3 (in which case as of such date); provided, that the condition described in this clause (fCapitalization) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection true and correct in all material respects as of the Expiration Date, (dB) above Section 4.4 (Authority Relative to Agreement); Section 4.25 (Takeover Statutes); Section 4.26 (No Vote Required); and Section 4.27 (Brokers) of the Merger Agreement shall be true and correct in all material respects as of the Expiration Date, and (C) the Merger Agreement, other than those sections specifically identified in clauses (A) and (B), shall be true and correct (disregarding for purposes of this clause (C) any materiality or “Company Material Adverse Effect” (as defined below) qualifications therein), except with respect to both clause (B) and clause (C), to the extent that any such representation and warranty expressly speaks as of a specified date, in which case such representation and warranty shall be true and correct as of such specified date; provided, however, that the condition set forth in clause (C) shall be deemed to have been satisfied even if any representations and warranties of Steinway are not this subsection (g)so true and correct unless the failure of such representations and warranties of Steinway to be so true and correct would have, individually or in the aggregate, a Company Material Adverse Effect; provided, further, that with respect to any breach by Signal however, solely for the purposes of clause (A) above, if one or more inaccuracies in the provisions of representations and warranties set forth in Section 2.04(a) 4.3 (other than the first sentence thereof, which has no cure periodCapitalization) of the Merger Agreement, Signal shall be afforded up Agreement would cause damages or diminution in value to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane Parent or Purchaser regardless of $5 million or more or would cause the circumstances giving rise aggregate amount required to any such conditions and may be waived paid by Crane or Purchaser, by express and specific action Parent and/or Purchaser to that effect, consummate the Transactions (as defined in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure ), to increase by Crane $5 million or Purchaser at any time to exercise any more, such inaccuracy or inaccuracies will be considered material for purposes of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right, which may be asserted at any time and from time to time.clause (A) above;
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, but subject to the terms of the Merger Agreement, the Purchaser shall will not be required to accept for payment or, subject to any applicable rules and or regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActCommission, pay for any Shares tendered pursuant to Shares, and may terminate the Offer if (i) there shall not have been validly tendered and not withdrawn prior to if by the expiration of the Offer that number of Shares which, when added to Shares(or, if anyextended, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority the expiration of the then total issued and outstanding Shares (assumingOffer, for this purpose, as so extended) the exercise of all options to purchase shares of Common Stock that Minimum Condition shall not have a per share exercise price of less than $13.25)been satisfied, (ii) any if all applicable waiting period (and any extension(s) thereof) periods under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer terminated, or (iii) if on or after April 30, 1999, and at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offersuch Shares, any one or more of the following events (together with the foregoing events, the "Offer Conditions") shall occur; provided, that in each such case, the Purchaser shall not be permitted to terminate the Offer (except pursuant to the condition specified in paragraph (g) below) if prior to the then scheduled expiration of the Offer, the Offer shall have occurredbeen extended:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail have occurred (i) challenging or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates (whether or not mandatory), (yii) a commencement formal declaration of a war, armed hostilities war or other national or international calamity directly or indirectly involving the United States or(other than any declaration of war resulting from the current conflict in Yugoslavia), (iii) any limitation (whether or not mandatory) by any United States governmental authority on the extension of credit by banks or other financial institutions that materially affects the extension of credit by banks or other lending institutions, (iv) any general suspension of, or limitation on prices for, trading in securities on the Nasdaq National Market or the over the counter market, or (v) in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof; (b) the Company shall have breached or acceleration thereoffailed to perform any of its material obligations, covenants or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of agreements under the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those in a manner permitting Parent to terminate the Merger Agreement or any representation or warranty of the Company set forth in clauses the Merger Agreement shall not be true and correct, provided that such representations and warranties shall be deemed to be true and correct unless the failure of such representations and warranties to be so true and correct would have a Material Adverse Effect (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, as defined in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure ) or would prevent the Company from consummating the transactions contemplated by Crane or Purchaser the Merger Agreement in each case as if such representations and warranties were made at any the time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right, which may be asserted at any time and from time to time.termination; 26
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions term of the Offer, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Shares after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer if (i) unless prior to the Expiration Date there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that a number of Shares which, when added to Shares, if any, previously acquired together with any outstanding Shares solely owned by Purchaser or Crane Enghouse or any of their respective affiliatesits subsidiaries, represents constitutes a majority of the then total issued and outstanding Shares (assumingdetermined on a fully diluted basis). Furthermore, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) notwithstanding any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration other term of the Offer or (iii) the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate the Offer if, at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the OfferExpiration Date, any one or more of the following events shall have occurred:conditions exists (other than as a result of any action or inaction of Enghouse or any of its subsidiaries that constitutes a breach of the Merger Agreement):
(a) there shall be threatened, instituted or be pending by or before any person or Governmental Authority Entity any suit, action or proceeding that is reasonably likely to prevail (i) challenging the acquisition by Enghouse or the Purchaser of any Shares under the Offer, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or seeking to substantially deprive Crane of obtain from Syntellect, Enghouse or the Purchaser any of damages that are material in relation to Syntellect and its anticipated benefits of the Mergersubsidiaries taken as a whole, (ii) seeking to prohibit or materially limit the ownership or operation by SignalSyntellect, Crane Enghouse or any of their respective subsidiaries of a material portion of the business, operations business or assets of Signal Syntellect and its subsidiaries, taken as a whole, or Crane and/or Enghouse and its subsidiaries subsidiaries, taken as a whole, or to compel Signal Syntellect and its subsidiaries, taken as a whole or Crane Enghouse to dispose of or hold separate any material portion of the business or assets of Signal Syntellect or Crane and/or Enghouse and its subsidiaries subsidiaries, taken as a whole, in each case as a result of the Offer or any of the other transactions contemplated by the Merger or Agreement, (iii) seeking to impose material limitations on the ability of Crane Enghouse or the Purchaser to acquire or hold, or 28 exercise full rights of ownership of Sharesof, any Shares to be accepted for payment pursuant to the Offer including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of SignalSyntellect, (iv) seeking to prohibit Enghouse or any of its subsidiaries from effectively controlling in any material respect any material portion of the business or operations of Syntellect or its subsidiaries or (v) which would have a Material Adverse Effect on Syntellect or would result in the payment of substantial damages;
(b) any statute, rule, regulation, judgment, order or injunction there shall be any Law or Order enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR ActEntity, that is reasonably likely to result, directly or indirectly, in any of the consequences described referred to in clauses (i) through (iiiv) of subsection paragraph (a) above;
(c) there shall have occurred a any Material Adverse Effect with respect to SignalSyntellect;
(d) (i) the Board of Directors of Signal Syntellect or any committee thereof shall have withdrawn, modified, (x) withdrawn or changed modified in a manner adverse to Enghouse or the Purchaser its approval or recommendation in respect of the Offer or the Merger or its adoption of the Merger Agreement, (y) approved or recommended or taken a neutral position with respect to any Takeover Proposal, (z) failed to reaffirm its recommendation of the Offer or the Merger or the Offer in a manner adverse to its adoption of the Merger or the Offer, or adverse Agreement within five business days of being requested by Enghouse to Crane or Purchaserdo so, (ii) a Takeover Proposal is publicly announced, disclosed or commenced or submitted, made or publicly communicated to the Board of Directors of Syntellect and Syntellect fails to comply with the requirements of the Merger Agreement, or (iii) the Board of Directors of Signal shall have recommended Syntellect or any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal committee thereof shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal Syntellect set forth in the Merger Agreement shall not be true and correct in any material respect (without regard to any materiality qualifications qualifiers therein), in each case at the date of the Merger Agreement or references to Material Adverse Effect contained in any specific representation at the scheduled or warranty) extended expiration of the Offer as if such representations and warranties representation or warranty were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause ;
(f) Enghouse, Syntellect and their respective subsidiaries, as applicable, shall have failed to obtain the consent or approval of any person whose consent or approval shall be deemed not required under any agreement or instrument in order to have been triggered so long as permit the consummation of the Offer and the Merger or any of the other transactions contemplated by the Merger Agreement, except those that the failure of all such representations and warranties so to be true and correct obtain would not have reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Signal or prevent or materially delay Syntellect if the consummation closing of the Offertransactions contemplated by the Merger Agreement were to occur;
(g) Signal Syntellect shall have failed to perform or comply, in all material respects, with any material respect any of its obligations required agreement, obligation or covenant to be performed or complied with by it under the Merger Agreement at or prior to consummation of the OfferAgreement, which failure to perform is incapable of being cured or, with respect to a failure that is curable, or comply has not been cured within twenty (20) five business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; orSyntellect;
(h) there shall not have occurredoccurred and be continuing: (i) (A) any general suspension of trading in, and continued or limitation on prices for, securities on The New York Stock Exchange or Nasdaq (excluding any organized halt triggered solely as a result of a specified decrease in a market index or suspensions or limitations resulting solely from physical damage, technological or software breakdowns or malfunctions or interference with such exchange not related to existmarket conditions) or (B) any decline in any of the Dow ▇▇▇▇▇ Industrial Average, the Standard & Poors Index of 500 Industrial Companies or the Nasdaq Composite Index in excess of 20% measured from the close of business on the date of the Merger Agreement; (xii) a declaration by a Governmental Body of a banking moratorium or any suspension of payments in respect of banks in the United States, ; (yiii) an act of terrorism or a commencement of a war, armed hostilities or other international or national calamity directly or international calamity indirectly involving the United States oror Canada, which in any case could have a Material Adverse Effect on Syntellect or Enghouse or could materially adversely affect Enghouse's or the case of Purchaser's ability to consummate the Offer or the Merger; (iv) any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material extraordinary limitation (whether or not mandatory) by any Governmental Authority Entity on the extension of credit generally by banks or other lending financial institutions; or (v) a change in general financial, bank or capital market conditions which materially and adversely affects the ability of financial institutions in the case United States to extend credit or syndicate loans;
(i) any person, entity or group directly or indirectly acquires or agrees to acquire, or discloses an intention to acquire beneficial ownership of clauses securities representing 15% or more of the outstanding securities of any class of voting securities of Syntellect; or 29
(x), (yj) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003)shall have been terminated in accordance with its terms. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Enghouse and the Purchaser and may be asserted by Crane or Purchaser regardless may, subject to the terms of the circumstances giving rise to any such conditions and may Merger Agreement, be waived by Crane or Purchaser, by express Enghouse and specific action to that effect, the Purchaser in whole or in part, part at any time and from time to time in their sole reasonable discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane Enghouse or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Offer to Purchase (Syntellect Inc)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered CCPRs promptly after expiration or termination of the Offer), to pay for any Shares tendered CCPRs tendered, and may postpone the acceptance for payment or, subject to the restriction referred to above, payment for any CCPRs tendered, and may amend or terminate the Offer (whether or not any CCPRs have theretofore been purchased or paid for) if, (i) Purchaser is not satisfied, in its sole discretion, that, upon purchase of the CCPRs pursuant to the Offer if (i) there shall not Offer, it, the Funds and/or their nominee will have been validly tendered full rights to ownership as to all such CCPRs and not withdrawn prior to that it, the expiration Funds and/or their nominee will become registered holder of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)purchased CCPRs, (ii) any applicable waiting period (all material regulatory and any extension(s) thereof) under the HSR Act shall related approvals have not have expired been obtained or been terminated prior made on terms reasonably satisfactory to the expiration of the Offer Purchaser, or (iii) at any time on or after the date of the Merger Agreement and prior to any before acceptance for payment of, or payment for for, such CCPRs any Shares pursuant to the Offer, any one or more of the following events shall occur or shall be deemed by Purchaser to have occurred:
(aA) there shall be have been threatened, instituted or be pending any action, proceeding, application or counterclaim by or before any person court or Governmental Authority any suitgovernmental, action regulatory or proceeding that is reasonably likely to prevail administrative agency, authority or tribunal, domestic, foreign or supranational (other than actions, proceedings, applications or counterclaims filed or initiated by Purchaser), which (i) challenging seeks to challenge the acquisition by Purchaser of the CCPRs, restrain, prohibit or seeking to restrain or prohibit delay the making or consummation of the Offer Offer, or the Merger or to substantially deprive Crane of obtain any damages in connection with any of its anticipated benefits of the Mergerforegoing, (ii) seeking seeks to prohibit make the purchase of or materially limit payment for, some or all of the ownership CCPRs pursuant to the Offer or operation by Signalotherwise, Crane illegal, (iii) seeks to impose limitations on the ability of Purchaser, the Funds or any of their respective subsidiaries affiliates effectively to acquire or hold, or requiring Purchaser, the Funds or any of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane their respective affiliates to dispose of or hold separate separate, any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger business of Purchaser, the Funds or their respective affiliates, or impose limitations on the ability of Purchaser, the Funds or any of their respective affiliates to continue to conduct, own or operate all or any portion of their businesses and assets as heretofore conducted, owned or operated, (iiiiv) seeking seeks to impose or may result in material limitations on the ability of Crane Purchaser or Purchaser any of its affiliates to acquire or exercise full rights of ownership of Sharesthe CCPRs purchased by them, including, without limitation(v) is reasonably likely to result in a material diminution in the benefits expected to be derived by Purchaser, the right Funds or any of their respective affiliates as a result of the transactions contemplated by the Offer or (vi) seeks to vote such Shares impose voting, procedural, price or other requirements in addition to those under Delaware law and federal securities laws (each as in effect on all matters properly presented the date of the Offer to Purchase) or any material condition to the stockholders of SignalOffer that is unacceptable (in its reasonable judgment) to Purchaser;
(bB) there shall have been proposed, sought, promulgated, enacted, entered, enforced or deemed applicable to the Offer by any domestic, foreign or supranational government or any governmental, administrative or regulatory authority or agency or by any court or tribunal, domestic, foreign or supranational, any statute, rule, regulation, judgment, decree, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to resultmight, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iiivii) of subsection paragraph (aA) above;
(cC) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board any general suspension of Directors of Signal shall have withdrawn, modifiedtrading in, or changed its approval limitation on prices for, securities on any national securities exchange or recommendation in respect of the Merger Agreement, over-the-counter market in the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or PurchaserUnited States, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yiii) any material adverse change (or any existing or threatened condition, event or development involving a prospective material adverse change) in United States or any other currency exchange rates or a suspension of, or a limitation on, the markets therefor, (iv) the commencement of a war, armed hostilities or other international or national calamity, directly or international calamity indirectly involving the United States orStates, in the case of (v) any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation limitations (whether or not mandatory) imposed by any Governmental Authority on governmental authority on, or any event which might have material adverse significance with respect to, the nature or extension of credit or further extension of credit by banks or other lending institutions, which (vi) any significant adverse change in securities or financial markets in the United States or abroad or (vii) in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date any of the Merger Agreement foregoing, a material acceleration or worsening thereof;
(i.e.D) any change (or any development involving a prospective change shall have occurred or be threatened in the business, April 16financial condition, 2003). results of operations, or prospects of Amgen's Neupogen franchise which, in the sole judgment of the Purchaser, is, or may be, materially adverse to the Holders, or the Purchaser shall become aware of any fact (including without limitation any such 16 change or development) which, in the sole judgment of the Purchaser, has, or may have, materially adverse significance with respect to the Holders; or
(E) a tender offer or exchange offer for some portion or all of the CCPRs shall have been commenced or publicly proposed to be made by any other person or entity, or it shall have been publicly disclosed or the Purchaser shall have learned or the Purchaser shall have cause to believe that any other person or entity shall have entered into a definitive agreement or an agreement in principle or made a proposal with respect to a tender offer or exchange offer for some portion or all of the CCPRs, or Amgen shall have authorized, recommended, or proposed, or shall have announced an intention to authorize, recommend, or propose, any other material change in its arrangement with the Holders; or The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane Purchaser and Purchaser its affiliates and may be asserted by Crane or Purchaser regardless of the circumstances (other than any action or inaction by Purchaser or any of its affiliates) giving rise to any such conditions and condition or may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which right and may be asserted at any time and from time to time. Any reasonable determination by Purchaser concerning any of the events described herein shall be final and binding.
Appears in 1 contract
Sources: Offer to Purchase (Pharmainvest LLC)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions term of the OfferOffer or the Investment Agreement, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and 29 32 regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser's obligation to pay for or return tendered Shares after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer if (i) there shall not have been validly tendered and not withdrawn prior to may terminate or amend the expiration Offer, with the consent of the Offer that number of Shares whichCompany or if, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of the Merger Investment Agreement and prior to any before the acceptance of such Shares for payment or the payment for any Shares pursuant to the Offertherefor, any one or more of the following events shall have occurred:
conditions exists (the "Offer Conditions"): (a) there shall be instituted threatened or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail proceeding, or there shall be pending by any other person any suit, action or proceeding, which has a substantial likelihood of success, (i) challenging or the acquisition by the Purchaser of any shares of Common Stock of the Company, seeking to restrain or prohibit the making or consummation of the Offer or the Merger share issuances as contemplated by the Investment Agreement or to substantially deprive Crane the performance of any of the other transactions contemplated by the Investment Agreement or the Ancillary Agreements, or seeking to obtain from the Company or the Purchaser any damages that are material in relation to the Company and its anticipated benefits of the Mergersubsidiaries taken as a whole, (ii) seeking to prohibit or materially limit the ownership or operation by Signalthe Company, Crane the Purchaser or any of their respective subsidiaries of a material portion of the business, operations business or assets of Signal the Company and its subsidiaries, taken as a whole, or Crane and/or the Purchaser and its subsidiaries subsidiaries, taken as a whole, or to compel Signal or Crane the Company to dispose of or hold separate any material portion of the business or assets of Signal the Company and its subsidiaries, taken as a whole, or Crane and/or the Purchaser and its subsidiaries subsidiaries, taken as a whole, as a result of the Offer or any of the Merger other transactions contemplated by Investment Agreement or the Ancillary Agreements, (iii) seeking to impose material limitations on the ability of Crane or the Purchaser to acquire or hold, or exercise full rights of ownership of, any shares of Shares, common stock of the Company to be accepted for payment pursuant to the Offer or any Newly Issued Shares including, without limitation, the right to vote such Newly Issued Shares on all matters properly presented to the stockholders of Signal;
the Company or (iv) seeking to prohibit the Purchaser or any of its subsidiaries from exercising any of their respective material rights under the Investment Agreement or any Ancillary Agreement (for purposes of the Investment Agreement, a "Governmental Authority" means any governmental, quasi-governmental, judicial, self-regulatory or regulatory agency or entity or subdivision thereof with jurisdiction over the Company or the Purchaser or any of their subsidiaries or any of the transactions contemplated by the Investment Agreement); (b) there shall be any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or or the Mergershare issuances, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described referred to in clauses (i) through (iiiiv) of subsection paragraph (a) above;
; (c) there shall have occurred any event which constitutes a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner material adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offereffect, or the Merger occurrence or existence of facts or circumstances reasonably expected to result in a material adverse effect, on the business, assets, results of operations, properties, financial or operating condition of the Company and its subsidiaries taken as a whole (without including economic or other matters affecting business or the seed industry generally) or the ability of the Company (and, to the extent applicable, its subsidiaries) to perform its (or their) obligations under the Investment Agreement shall have been terminated in accordance with its terms;
or consummate the transactions contemplated thereby or by the Ancillary Agreements; (fd) any of the representations and warranties of Signal the Company set forth in the Merger Investment Agreement that are qualified as to materiality shall not be true and correct (without regard to and any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were that are not so qualified shall not be true and correct in any material respect, in each case as of the date of the Investment Agreement and as of the Expiration Date as though made at on and as of the time Expiration Date (or any other date as of any such determination, except to the extent which such representations and warranties expressly relate to an earlier date (in which case as of such datespeak); provided, that (e) the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal Company shall have failed to perform furnish to the Purchaser an opinion of John ▇. ▇▇▇▇▇▇, ▇▇., ▇▇nior Vice President and General Counsel of the Company, in the form attached to the Investment Agreement, dated as of the date of the Closing if it occurs on or before the Expiration Date, or if the Closing Date shall not have occurred, speaking in future tense as relates to issuance of the Newly Issued Shares; 30 33 (f) during the period from the date of the Investment Agreement until the Expiration Date, neither the Company nor any material respect subsidiary shall have sold or otherwise disposed of (or authorized, committed or agreed to sell or otherwise dispose of), in a single transaction or in a series of transactions, excluding sales of inventory or other assets in the normal course of business, any business or assets relating to the Primary Business of its obligations required to be performed by it under the Merger Agreement at or Company that constitute more than five percent of the total consolidated assets of the Company as shown on the Company's consolidated balance sheet as of the end of the most recent fiscal quarter ending prior to consummation the time the determination is made, whether such sale or disposition be by merger or consolidation or the sale of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signalstock or assets or otherwise; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurredoccurred (i) any general suspension or trading in, and continued to existor limitation on prices for, securities (excluding any coordinated trading halt triggered solely as a result of a specified decrease in a market index), (xii) any extraordinary change in the financial markets in the United States, (iii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (yiv) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on on, or other event that materially affects, the extension of credit by banks or other lending institutions, which (v) a commencement of a war directly involving the armed forces of the United States, or (vi) in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect any of the foregoing existing on the date of the Merger Investment Agreement, material acceleration or worsening thereof; (h) the Board of Directors of the Company shall have failed to give, withdrawn or modified in a manner adverse to the Purchaser its approval or recommendation of the Offer or the other transactions contemplated by the Investment Agreement or the Ancillary Agreements; (i.e.i) the Amended Bylaws contemplated in the Investment Agreement shall not be authorized, April 16approved and effected; or (j) the Investment Agreement shall have terminated in accordance with its terms; which, 2003in the reasonable good faith judgment of the Purchaser, and regardless of the circumstances giving rise to any such condition (other than any action or inaction by the Purchaser or any of its subsidiaries which constitutes a breach of the Investment Agreement), makes it inadvisable to proceed with such acceptance for payment or payment. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and the Purchaser and may be asserted by Crane or the Purchaser regardless of the circumstances giving rise to any such conditions and condition or may be waived by Crane or Purchaser, by express and specific action to that effect, the Purchaser in whole or in part, part at any time and from time to time in their its sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane the Purchaser or any other subsidiary of the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time. Any determination (which shall be made in good faith by the Purchaser) with respect to the foregoing conditions shall be final and binding on the parties.
Appears in 1 contract
Sources: Investment Agreement (Monsanto Co)
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, but subject to the terms of the Merger Agreement, and in addition to the Minimum Condition, Purchaser shall not be required to accept for payment oror pay for, subject or may delay the acceptance for payment of or payment for, tendered Shares, or may, in the sole discretion of Purchaser, terminate the Offer as to any applicable rules and regulations Shares not then accepted for payment or paid for, if any of the SECfollowing events shall occur, including Rule 14e-1(c) promulgated under which, in the Exchange Act, pay for any Shares tendered pursuant reasonable judgment of Purchaser with respect to the Offer if (i) there shall not have been validly tendered each and not withdrawn prior every matter referred to the expiration below and regardless of the Offer that number of Shares which, when added circumstances giving rise to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliatesthe following events, represents makes it inadvisable to proceed with the Offer, the acceptance for payment or payment for the Shares or the Merger:
(a) The affirmative vote of the holders of more than a majority of the then total issued and outstanding Shares is required to consummate the Merger or Purchaser is not entitled to vote its Shares for the Merger, or the affirmative vote of the holders of any securities of the Company other than the Shares is required to consummate the Merger;
(assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (iib) any applicable Any waiting period (and any extension(s) extension thereof) applicable to the consummation of the transactions contemplated by the Merger Agreement under the HSR Act shall not have expired or been terminated prior terminated;
(c) The Company shall not have obtained such licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the expiration of the Offer or (iii) at any time on or after the date Company and its subsidiaries as are necessary for consummation of the Merger Agreement (excluding licenses, permits, consents, approvals, authorizations, qualifications or orders, the failure of which to obtain would not in the aggregate have a material adverse effect on the Company and prior its subsidiaries taken as a whole);
(d) The Company shall have withdrawn or modified in a manner adverse to any acceptance for payment Purchaser its approval or payment for any Shares pursuant to recommendation of the Offer, the Merger Agreement or the Merger, or the Board shall have resolved to do any one or more of the following events foregoing, except in the case that Purchaser or Parent shall have occurred:failed to perform in any material respect any of their respective material obligations under the Merger Agreement;
(ae) there There shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail which has a reasonable probability of success before any domestic or foreign court, legislative body or governmental agency or other regulatory or administrative agency or commission (i) challenging the acquisition in whole or in part of the Shares, seeking to restrain or prohibit the making or consummation of the Offer or seeking to obtain any material damages or otherwise directly or indirectly relating to the Merger or to substantially deprive Crane of any of its anticipated benefits of transaction contemplated by the MergerOffer, (ii) seeking to prohibit or materially limit restrict the ownership or operation by Signal, Crane Parent or Purchaser (or any of their respective subsidiaries affiliates or subsidiaries) of a any material portion of its or the businessCompany's business or assets, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal Parent or Crane Purchaser (or any of their respective affiliates or subsidiaries) to dispose of or hold separate all or any material portion of the Company's business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or Offer, (iii) seeking making the purchase of, or payment for, some or all of the Shares illegal, (iv) resulting in a delay in the ability of Purchaser to impose accept for payment or pay for some or all of the Shares, (v) imposing material limitations on the ability of Crane or Purchaser effectively to acquire or to hold or to exercise full rights of ownership of the Shares, including, without limitation, the right to vote such the Shares purchased by Purchaser on all matters properly presented to the stockholders of Signalthe Company, (vi) imposing any limitations on the ability of Parent or Purchaser or any of their respective affiliates or subsidiaries effectively to control in any material respect the business and operations of the Company, (vii) which otherwise is reasonably likely to have a material adverse effect on the Company and its subsidiaries taken as a whole or (viii) which may result in a material limitation on the benefits expected to be derived by Parent and Purchaser as a result of the Offer, including without limitation, any limitation on the ability to consummate the Merger;
(bf) any Any statute, rule, regulation, judgment, regulation or order or injunction shall be enacted, enteredpromulgated, enforced, promulgated entered or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken have been taken, proposed or threatened, by any Governmental Authority domestic or foreign government or governmental authority or by any court, other than domestic or foreign, which, in the application to the Offer or the Merger reasonable judgment of applicable waiting periods under the HSR ActPurchaser, that is reasonably likely to resultlikely, directly or indirectly, to result in any of the consequences described referred to in clauses (i) through (iiiviii) of subsection (ae) above;
(cg) there Any change (or any development involving a prospective change) shall have occurred which in the judgment of Purchaser had, or may reasonably be expected to have, a Material Adverse Effect with respect to Signalmaterial adverse effect on the Company and its subsidiaries taken as a whole;
(ih) the Board of Directors of Signal The Company shall have withdrawn, modified, breached or changed failed to perform in all material respects any of its approval obligations or recommendation in respect of agreements under the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal the Company set forth in the Merger Agreement, the schedules thereto or in any written certificate or schedule delivered pursuant thereto shall be, or have become, inaccurate or incomplete in any respect, in each case, with such exceptions as would not in the aggregate have a material adverse effect on the Company and its subsidiaries taken as a whole;
(i) The Merger Agreement shall have been terminated by the Company, Parent or Purchaser pursuant to its terms;
(j) Any "Triggering Event" under the Rights Agreement dated as of October 24, 1991 by and between the Company and Chemical Trust Company of California, as Rights Agent (the "Rights Agreement") shall have occurred and the rights to purchase units of Series A Junior Participating Preferred Stock (the "Series A Preferred Stock"), par value $.01 per share of the Company (the "Rights"), shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at redeemable by the time of any such determinationCompany, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of see Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach16; or
(hk) there shall have occurred, and continued to exist, (x1) a declaration Stipulation of Settlement shall not have been entered into by the Company and certain plaintiffs (the "Plaintiffs") (the "Stipulation of Settlement") constituting, subject to court approval, a banking moratorium or any suspension legally binding agreement for the full and complete settlement of payments in respect of banks the class action litigation captioned In re Synergen, Inc. Securities Litigation, Case No. 93-B-402, pending in the United StatesStates District Court for the District of Colorado (the "Court"), as such settlement is described in that certain Memorandum of Understanding dated as of November 17, 1994 by and between the Company and the Plaintiffs (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x"MOU"), (y2) the Stipulation of Settlement shall not be in full force and effect or shall not reasonably reflect the terms and conditions of the MOU or (z3) prevents Crane from borrowing money pursuant the Court shall not have entered a Scheduling Order providing for, (i) approval of a form of notice to its credit facilities in effect on the date class members of the Merger Agreement Stipulation of Settlement and a deadline for giving notice to the class members, (i.e., April 16, 2003)ii) deadlines for class members to object to the settlement and/or to opt out of the class and (iii) a hearing date upon which the Court will consider whether to grant final approval of the Stipulation of Settlement. See Section 15. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and or may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right right, and each such right shall be deemed an ongoing right, a continuing right which may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Tender Offer Statement
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of the Offer, the Purchaser shall will not be required to accept for payment or, subject to any applicable rules and or regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Units promptly after the expiration or termination of the Offer), to pay for any Shares tendered pursuant Units tendered, and may postpone the acceptance for payment or, subject to the restriction referred to above, payment for any Units tendered, and may amend or terminate the Offer if (i) there the Purchaser shall not have confirmed to its reasonable satisfaction that, upon purchase of the Units pursuant to the Offer, the Purchaser will have full rights to ownership as to all such Units and that the Purchaser will become a registered owner on the books and records of the Partnership, (ii) the Purchaser shall not have confirmed to its reasonable satisfaction that, upon the purchase of the Units pursuant to the Offer, the Transfer Restrictions will have been satisfied, or (iii) all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, necessary for the consummation of the purchase contemplated by the Offer shall not have been validly tendered and not withdrawn prior to the expiration filed, occurred or been obtained. Furthermore, notwithstanding any other term of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purposeOffer, the exercise of all options Purchaser will not be required to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) accept for payment or pay for any applicable waiting period (Units not theretofore accepted for payment or paid for and any extension(s) thereof) under the HSR Act shall not have expired may terminate or been terminated prior to the expiration of amend the Offer or (iii) as to such Units if, at any time on or after the date of the Merger Offer and before the Expiration Date any of the following conditions exist: (a) the acceptance by the Purchaser of Units tendered and not withdrawn pursuant to the Offer or the transfer of such Units to the Purchaser violates restrictions in the Partnership Agreement and prior which prohibit any transfer of Units which would cause a termination of the Partnership or would cause the Partnership to be taxed as a "publicly traded partnership" under the Internal Revenue Code; (b) there shall have been threatened, instituted or pending any acceptance for payment action or payment for proceeding before any Shares court or governmental agency or other regulatory or administrative agency or commission or by any other person, challenging the acquisition of any Units pursuant to the Offer or otherwise directly or indirectly relating to the Offer, any one or more otherwise, in the judgment of the following events shall have occurred:
(a) there shall be instituted or be pending by any person or Governmental Authority any suitPurchaser, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit adversely affecting the making or consummation of the Offer Purchaser or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, Partnership; (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(bc) any statute, rulerule or regulation shall have been proposed, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the MergerOffer, or any other action or order shall be taken have been proposed, entered into or taken, by any Governmental Authority government, governmental agency, or courtother regulatory or administrative agency or authority, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectlywhich, in any the judgment of the consequences described in clauses Purchaser, might (i) through (iii) of subsection (a) above;
(c) there shall have occurred result in a Material Adverse Effect with respect to Signal;
(i) delay in the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect ability of the Merger AgreementPurchaser or render the Purchaser unable, to purchase or pay for some or all of the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchasertendered Units, (ii) the Board of Directors of Signal shall have recommended any Competing Transactionmake such purchase or payment illegal, or (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of otherwise adversely affect the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date)Partnership; provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); providedany change shall have occurred or be threatened in the business, furtherfinancial condition, that with respect to any breach by Signal results of operations, tax status or prospects of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States orPartnership which, in the case of any judgment of the foregoing occurrences existing on Purchaser, is or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.13
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions of The Merger Agreement provides that the Offer, Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer and may postpone the acceptance for payment or payment for any Shares tendered and when permitted by the Merger Agreement, amend or terminate the Offer if (i) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents which would represent at least a majority of the then total issued and outstanding Shares (assumingdetermined on a fully diluted basis for all outstanding stock options, for this purpose, convertible debentures and any other rights to acquire Shares on the exercise date of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), purchase) (the "FULLY DILUTED SHARES") and (ii) any applicable requisite waiting period (and any extension(s) thereof) under the HSR Act (and any extension thereof) applicable to the purchase of Shares pursuant to the Offer or to the Merger and any other requisite waiting periods under any other applicable material competition, merger, control, antitrust or similar law or regulation shall not have expired or been terminated prior to the expiration or shall not have expired. Furthermore, notwithstanding any other term of the Offer or (iii) at the Merger Agreement, the Purchaser will not be required to accept for payment or, subject to any time on or after the date applicable rules and regulations of the Merger Agreement and prior Commission, to pay for any acceptance Shares not yet accepted for payment or payment for any Shares pursuant paid for, and, subject to the Merger Agreement, may terminate or amend the Offer, immediately prior to the applicable Expiration Date, if any one or more of the following events shall have occurredconditions exists:
(a) there shall be instituted pending or be pending by any person or Governmental Authority formally threatened in writing any suit, action or proceeding that is reasonably likely to prevail by any Governmental Entity having a reasonable likelihood of success on the merits (i) challenging the acquisition by Parent or the Purchaser of any shares of common stock of the Company, seeking to restrain or prohibit the making or consummation of the Offer or the Merger Merger, or seeking to substantially deprive Crane place limitations on the ownership of any Shares (or shares of its anticipated benefits common stock of the Company following the Merger) by Parent or the Purchaser, (ii) seeking to prohibit or materially limit the ownership or operation by Signal, Crane the Company or any of Parent and their respective subsidiaries of a any material portion of the business, operations business or assets of Signal the Company or Crane and/or its Parent and their respective subsidiaries taken as a whole, or to compel Signal the Company or Crane Parent and their respective subsidiaries to dispose of or hold separate any material portion of the business or assets of Signal the Company or Crane and/or its Parent and their respective subsidiaries taken as a whole, as a result of the Offer or Offer, the Merger or any of the other transactions contemplated by the Merger Agreement, (iii) seeking to impose prohibit Parent or any of its subsidiaries from effectively controlling in any material limitations on respect the ability business or operations of Crane the Company or Purchaser Parent and subsidiaries taken as a whole, or (iv) which otherwise is reasonably expected to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signalhave a Material Adverse Effect;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to Legal Restraint that has the Offer and/or effect of preventing the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application purchase of Shares pursuant to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, shall be in any of the consequences described in clauses (i) through (iii) of subsection (a) aboveeffect;
(c) except as set forth in the Company's disclosure schedule to the Merger Agreement or in the SEC Documents (as defined in the Merger Agreement), since April 29, 2000, there shall have occurred been any state of facts, change, development, effect, event, condition or occurrence that, individually or in the aggregate, constitutes or would reasonably be expected to have, a Material Adverse Effect Effect;
(d) as of the date of the consummation of the Offer, the representation and warranty of the Company with respect to Signalits capital structure and outstanding equity interests shall not be true and correct in all material respects, or the other representations and warranties of the Company contained in the Merger Agreement shall not be true and correct (without giving effect to any limitation as to "materiality" or material adverse effect set forth therein), as if such representations and warranties were made on the date thereof, except for such failures to be true and correct that, individually and in the aggregate, would not reasonably be expected to have a Material Adverse Effect;
(ie) the Board of Directors of Signal Company shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse failed to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached perform in any material respect any of its obligations material obligation required to be performed by it under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), at or (iv) prior to the Board of Directors of Signal shall have resolved to take any of the foregoing actionsSpecified Date;
(ef) SignalParent shall not have obtained all consents, Purchaser approvals, authorizations, qualifications and Crane shall orders of all Governmental Entities legally required in connection with the Merger Agreement and the transactions contemplated by the Merger Agreement other than any such consents, approvals, authorizations, qualifications and orders, the failure of which to obtain, individually and in the aggregate, would not reasonably be expected to have agreed in writing to terminate the Offer, or a Material Adverse Effect;
(g) the Merger Agreement shall have been terminated in accordance with its terms;
(fi) the Company Board shall have (A) withdrawn or modified or changed, in any manner adverse to Parent or the Purchaser, the Recommendation, (B) accepted, approved or recommended any Takeover Proposal, or (C) resolved or publicly disclosed any intention to do any of the representations and warranties of Signal set forth in foregoing or (ii) the Merger Agreement Committee shall not be true and correct have (without regard to any materiality qualifications A) withdrawn or references to Material Adverse Effect contained modified in any specific representation manner adverse to Parent or warrantythe Purchaser, the Committee Approval, (B) as if such representations and warranties were made at the time of approved a Takeover Proposal or (C) resolved or publicly disclosed any such determination, except intention to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation do any of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breachforegoing; or
(hi) there shall have occurred, and continued occurred (i) any general suspension of trading in or on the Nasdaq National Market or the London Stock Exchange in excess of 24 hours (other than a shortening of trading hours or any coordinated trading halt triggered solely as a result of a specified increase or decrease in a market index or a trading halt resulting from physical damage or interference with such market or exchange not related to existmarket conditions), (xii) a decline of at least 25% in all of the Dow ▇▇▇▇▇ Average of Industrial Stocks, the Standard & Poor's 500 Index and the Financial Times-Stock Exchange All Shares Index measured from the date hereof to the date on which the Offer has expired, (iii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United StatesStates or the United Kingdom, (yiv) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case imposition of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any government or Governmental Authority on Entity, that materially adversely affects the extension of credit by banks or other lending institutionsinstitutions or (v) a commencement of a war or armed hostilities or any other national or international calamity directly or indirectly involving the United States or the United Kingdom; which, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date sole discretion of the Merger Agreement (i.e.Purchaser or Parent in any such case, April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by Parent or any of its affiliates), makes it inadvisable to proceed with such acceptance for payment or payment. The foregoing conditions are for the sole benefit of the Purchaser and Parent and may be asserted by the Purchaser or Parent regardless of the circumstances giving rise to such condition or may be waived by Crane the Purchaser or Purchaser, by express and specific action to that effect, Parent in whole or in part, part at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane Parent, the Purchaser or Purchaser any other affiliate of Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right; the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Parent and the Purchaser shall will not be required to accept for payment orpayment, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, purchase or pay for any Shares tendered pursuant in connection with the Offer and may terminate or, subject to the Offer terms of the Merger Agreement, amend the Offer, if (i) there shall the Minimum Condition has not have been validly tendered and not withdrawn prior to the expiration satisfied as of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)Expiration Date, (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have has not, as of the Expiration Date, expired or been terminated prior to the expiration of the Offer terminated, or (iii) at any time on or after the date of the Merger Agreement and prior to any acceptance for payment or the time of payment for any Shares pursuant to the OfferShares, any one or more of the following events shall have occurredconditions exist:
(a) there shall be is instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail by any governmental authority or agency (i) challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the making or consummation of the Offer Offer, the acceptance for payment of or payment for the Shares by Parent or the Merger Purchaser or to substantially deprive Crane of any of its anticipated benefits the consummation of the Merger, (ii) seeking to restrain or prohibit or materially limit the Parent's ownership or operation by Signal, Crane (or any that of their its respective subsidiaries or affiliates) of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal the Company and its subsidiaries, taken as a whole, or Crane and/or of Parent and its subsidiaries, taken as a whole, or to compel Parent or any of its subsidiaries or affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company and its subsidiaries, taken as a result whole, or of the Offer or the Merger or Parent and its subsidiaries, taken as a whole, (iii) seeking to impose or confirm material limitations on the ability of Crane Parent, the Purchaser or Purchaser any of Parent's other subsidiaries or affiliates effectively to acquire or exercise full rights of ownership of the Shares, including, including without limitation, the right to vote such any Shares acquired or owned by Parent, the Purchaser or any of Parent's other subsidiaries or affiliates on all matters properly presented to the stockholders Company's shareholders or (iv) seeking to require divestiture by Parent, the Purchaser or any of Signal;Parent's other subsidiaries or affiliates of any Shares; or
(b) there has been any action taken, or any statute, rule, regulation, judgmentinjunction, order or injunction shall be order, decree, enacted, entered, enforced, promulgated promulgated, issued or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken by any Governmental Authority court, government or courtgovernmental authority or agency, domestic or foreign, other than the application of the waiting period provisions of the HSR Act to the Offer or the Merger of applicable waiting periods under the HSR ActMerger, that is reasonably likely to result, directly or indirectly, result in any of the consequences described referred to in clauses (i) through (iiiiv) of subsection paragraph (a) above;; or
(c) there shall have has occurred a Material Adverse Effect with respect to Signal;
(i1) the Board of Directors of Signal shall have withdrawn, modifiedany general suspension of, or changed its approval limitation on prices for, trading in securities on any national securities exchange or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained over-the-counter market in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) United States (other than the first sentence thereof, which has no cure period) any suspension or limitation on trading in any particular security as a result of the Merger Agreement, Signal shall be afforded up a computerized trading limit or any intraday suspension due to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist"circuit breakers"), (x2) a any declaration of a any banking moratorium or any suspension of payments in respect of banks or any limitation (whether or not mandatory) on the extension of credit by lending institutions in the United States, States or (y3) a any commencement of a war, armed hostilities or other national or international calamity involving the United States that has a material adverse effect on bank syndication for financial markets in the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material acceleration or worsening thereof; or
(d) any Person or acceleration thereof"group" (as such term is used in Section 13(d)(3) of the Exchange Act)--other than Parent, the Purchaser or another person (who on the date hereof alone or as part of a "group" (as such term is used in Section 13(d)(3) of the Exchange Act) is the beneficial owner of more than 5% of the outstanding Shares) or any of their respective affiliates--has become the beneficial owner (as that term is used in Rule 13d-3 under the Exchange Act) or has commenced or publicly announced the intention to commence a tender or exchange offer to acquire beneficial ownership or shall have been granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership, of more than 15% of the outstanding Shares; or
(e) the Company has breached or failed to comply in any material respect with any of its material obligations, covenants, or agreements under the Merger Agreement; or (zi) any representation or warranty of the Company contained in the Merger Agreement that is qualified by reference to a material limitation Material Adverse Effect (whether as defined below) or (ii) any representation or warranty contained in either Sections 4.11 (Taxes) or 4.12 (Compliance with Laws) of the Merger Agreement that is qualified by reference to "materiality" is not mandatorytrue and correct; or any other such representation or warranty is not true and correct in any respect that (when taken together with all such other representations and warranties not true and correct) by has had or would reasonably be likely to have a Material Adverse Effect, in each case either as of when made or at and as of any Governmental Authority on the extension of credit by banks or other lending institutions, which time thereafter (except in the case of clauses any representation or warranty that by its terms is made as of a date specified therein which need be accurate only as of such date); or
(x), (yf) or (z) prevents Crane from borrowing money the Merger Agreement has been terminated pursuant to its credit facilities in effect on the date terms or has been amended pursuant to its terms to provide for such termination or amendment of the Merger Agreement (i.e.Offer; which, April 16in the good faith judgment of ▇▇▇▇▇▇, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane conditions, makes it inadvisable to proceed with the Offer or Purchaser, by express and specific action to that effect, in whole with acceptance for payment or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to timepayment for Shares.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. For the purposes of this Section 15, capitalized terms used but not defined herein will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions term of the OfferOffer or the Merger Agreement, Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to Purchaser’s obligation to pay for or return tendered Shares of AMPAC promptly after the termination or withdrawal of the Offer), pay for any Shares of AMPAC tendered pursuant to the Offer if unless:
(ia) any waiting period (and extensions thereof) applicable to the Transactions (including the Offer and the Merger) under the HSR Act or Austrian Competition Laws shall not have expired or been terminated;
(b) there shall not have been validly tendered and not validly withdrawn prior to the expiration of the Offer Expiration Date that number of Shares which, when added to Sharestogether with (without duplication of such shares) any Shares then owned by Purchaser, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, collectively represents a majority as of the then total issued and outstanding Shares Expiration Date one Share more than fifty percent (assuming, for this purpose, the exercise 50%) of all options to purchase shares Shares then outstanding;
(c) as of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act Expiration Date there shall not have expired be any law, injunction, judgment or been terminated prior to ruling enacted, promulgated, issued, entered, amended or enforced by any governmental authority (collectively “Restraints”) in effect enjoining or otherwise preventing or prohibiting the expiration making of the Offer or the consummation of the Offer or the Merger;
(iiid) at any time on or after that the representations and warranties of AMPAC (A) set forth in 4.3(d)(Voting Requirements), Sections 4.6(b) (Absence of Certain Changes), 4.8(e) (Compliance with Anti-Terrorism Laws) and 4.15 (Rights Agreement) of the Merger Agreement shall be true and correct as of the date of the Merger Agreement and prior to any acceptance for payment or payment for any Shares pursuant to the Offer, any one or more as of the following events shall have occurred:
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (i) challenging or seeking to restrain or prohibit the making or consummation Expiration Date as though made as of the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the MergerExpiration Date, (iiB) seeking to prohibit or materially limit the ownership or operation by Signal, Crane or any of their respective subsidiaries of a material portion of the business, operations or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries as a result of the Offer or the Merger or set forth in Section 4.2 (iiiCapitalization) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
and Section 4.21 (bBrokers and Other Advisors) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, Table of Contents without giving effect to any materiality or “Company Material Adverse Effect” (as described below), shall be true and correct in all material respects as of the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 date of the Merger Agreement and as of the Expiration Date as though made as of the Expiration Date (regardingexcept to the extent expressly made as of an earlier date, among other things, solicitation in which case as of Competing Transactionssuch date), and (C) set forth in the Merger Agreement other than those sections specifically identified in clause (A) or (ivB) the Board of Directors of Signal this paragraph, without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein, shall have resolved to take any not be true and correct as of the foregoing actionsdate of the Agreement and as of the Expiration Date as though made as of the Expiration Date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (C), where the failure to be true and correct does not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Solely for the purposes of clause (B) of this paragraph, if one or more inaccuracies in the representations and warranties set forth in Section 4.2 (Capitalization) would cause the aggregate amount required to be paid by Parent or Purchaser to effectuate the Offer, the Merger, refinance AMPAC’s outstanding indebtedness, indirectly acquire all of the outstanding equity interests in AMPAC’s subsidiaries, consummate the Offer and the Merger to be consummated and pay all fees and expenses in connection therewith, including pursuant to Article III of the Merger Agreement, to increase by $3,890,000 or more, such inaccuracy or inaccuracies will be considered material for purposes of clause (B) of this paragraph (and if below $3,890,000, such inaccuracy or inaccuracies will not be considered material for purposes of clause (B) of this paragraph;
(e) Signal, Purchaser and Crane that AMPAC shall have agreed performed or complied with Section 6.1(b)(viii)(D) (to the extent relating to Company Plan that are Pension Plans) in writing all respects or shall have failed to terminate perform or comply in all material respects with its other obligations or covenants under the Merger Agreement in each case, on or prior to the Expiration Date and such failure to perform or comply with such obligations or covenants shall not have been cured prior to the Expiration Date; provided that a failure to perform or comply with the obligations or covenants set forth in Section 6.1(b)(i) shall be considered material for purposes of this paragraph if such failure would cause the aggregate amount required by Parent and Purchaser to effectuate the Offer, the Merger, refinance AMPAC’s outstanding indebtedness, indirectly acquire all of the outstanding interests in AMPAC’s subsidiaries, consummate the Offer and the Merger and pay all fees and expenses in connection therewith by $3,890,000 or more;
(f) a Company Material Adverse Effect shall not have occurred since the date of the Merger Agreement;
(g) the Merger Agreement shall not have been terminated in accordance with its terms;; and
(fh) any the marketing period of the representations and warranties of Signal at least 18 business days set forth in the Merger Agreement to allow Parent a certain amount of time to obtain the Debt Financing shall have been completed. The foregoing conditions are in addition to, and not be true a limitation of, the rights and correct (without regard obligations of Parent and Purchaser to any materiality qualifications extend, terminate or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at modify the time of any such determination, except Offer pursuant to the extent such representations terms and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) conditions of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of other than the initial paragraph of this Section 14Minimum Tender Condition) are for the sole benefit of Crane Parent and Purchaser and may be asserted by Crane or Purchaser regardless of (other than the circumstances giving rise to any such conditions and may Minimum Tender Condition) be waived by Crane Parent or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, (in each casecase on or prior to the Expiration Date), subject to any applicable provisions the terms of the Merger AgreementAgreement and applicable law. The failure by Crane Parent or 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, which right that may be asserted at any time and from time to timetime (in each case on or prior to the Expiration Date).
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions term of the OfferOffer or the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Shares after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer if unless, (i) there the Minimum Condition shall not have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)satisfied, (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall not have expired or been terminated prior and (iii) (A) all consents, approvals, orders or authorizations of, or registrations, declarations or filings with, any Governmental Entity with jurisdiction in respect of Gaming Laws (other than New Jersey) required or necessary in connection with the Offer, the Merger and the Merger Agreement and the transactions contemplated by the Merger Agreement (including the changes in the composition of the Board of Directors of the Company) shall have been obtained and shall be in full force and effect and (B) in the case of the New Jersey Casino Control Act and the rules and regulations promulgated thereunder (the "Casino Control Act"), either, at the option of Parent, (x) all shares of Caesars New Jersey, Inc. shall have been deposited in trust with a trustee qualified and otherwise acceptable to the expiration CCC and the related transactions and arrangements contemplated by the Merger Agreement shall be in full force and effect and, as a result, neither Parent nor the Purchaser will be required pursuant to the requirements of the Casino Control Act and the rules and regulations promulgated thereunder to deposit or place in trust any of the Shares currently owned by Parent or its affiliates or to be acquired pursuant to the Offer or
(1) the CCC shall have approved a form of trust agreement in form and substance reasonably satisfactory to Parent (including in respect of control by Parent of the Company and its subsidiaries) in respect of a trust arrangement for the Shares to be acquired pursuant to the Offer and the Merger pending final qualification of Parent to hold a casino license under the Casino Control Act and the rules and regulations thereunder, (2) a trustee qualified and otherwise acceptable to the CCC and Parent in respect of such trust arrangement for the Shares to be acquired pursuant to the Offer and the Merger shall have been appointed or designated and (3) the directors of the Purchaser shall have been qualified on a permanent or temporary basis to serve as directors of a company (including the Company) that either directly, or through its subsidiaries, holds a casino license under the Casino Control Act and the rules and regulations thereunder. Furthermore, notwithstanding any other term of the Offer or (iii) the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate the Offer if, at any time on or after the date of the Merger Agreement and prior to any before the acceptance of such shares for payment or the payment for any Shares pursuant to the Offertherefor, any one or more of the following events shall have occurred:conditions exists (other than as a result of any action or inaction of Parent or any of its subsidiaries which constitutes a breach of the Merger Agreement):
(a) there shall be instituted or be pending by any person or Governmental Authority any suit, action or proceeding that is reasonably likely to prevail (in the case of a suit, action or proceeding by a person other than a Governmental Entity, such suit, action or proceeding having a substantial likelihood of success or, in the case of a suit, action or proceeding by a Governmental Entity, such suit, action or proceeding having a reasonable likelihood of success), (i) challenging the acquisition by Parent or the Purchaser of any Shares under the Offer, seeking to restrain or prohibit the making or consummation of the Offer or the Merger Merger, or seeking to substantially deprive Crane of obtain from the Company, Parent or the Purchaser any of damages that are material in relation to the Company and its anticipated benefits of the Mergersubsidiaries taken as whole, (ii) seeking to prohibit or materially limit the ownership or operation by Signalthe Company, Crane Parent or any of their respective subsidiaries of a material portion of the business, operations business or assets of Signal the Company and its subsidiaries, taken as a whole, or Crane and/or Parent and its subsidiaries subsidiaries, taken as a whole, or to compel Signal the Company or Crane Parent to dispose of or hold separate any material portion of the business or assets of Signal the Company and its subsidiaries, taken as a whole, or Crane and/or Parent and its subsidiaries subsidiaries, taken as a whole, as a result of the Offer or the Merger or (iii) seeking to impose material limitations on the ability of Crane or Purchaser to acquire or exercise full rights of ownership of Shares, including, without limitation, the right to vote such Shares on all matters properly presented to the stockholders of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or the Merger, or any other action shall be taken by any Governmental Authority or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences described in clauses (i) through (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of other transactions contemplated by the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached in any material respect any of its obligations under Section 6.05 of the Merger Agreement (regarding, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time.,
Appears in 1 contract
Sources: Tender Offer Statement
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, or pay for any Shares tendered pursuant to Shares, and may terminate the Offer Offer, if (i) there shall the Minimum Condition has not have been validly tendered and not withdrawn prior to satisfied by the expiration of the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25)Expiration Date, (ii) any the applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to by the expiration date of the Offer Offer, or (iii) at any time on or after the date of the Merger Agreement August 14, 1998 and prior to any acceptance for payment or payment for any Shares pursuant to the expiration of the Offer, any one or more of the following events shall have occurredconditions exist:
(a) there shall be instituted or be pending any action, suit, investigation or proceeding by any person government or Governmental Authority governmental authority or agency, domestic or foreign, or by any suitother person, action domestic or proceeding that is reasonably likely to prevail (i) foreign, before any court or governmental authority or agency, domestic or foreign, challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the making of the Offer, the acceptance for payment of or consummation payment for some of or all the Shares pursuant to the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits consummation of the Merger, (ii) seeking to obtain material damages or otherwise directly or indirectly relating to the transactions contemplated by the Offer or the Merger, seeking to restrain, prohibit or materially limit the restrict Parent's ownership or operation by Signal, Crane (or any that of their its respective subsidiaries or affiliates) of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or its subsidiaries the Company and the Subsidiaries, taken as a result whole, or (based on claims arising out of or relating to the Offer or Offer, the Merger or the transactions contemplated by the Merger Agreement) of Parent and its subsidiaries, taken as a whole, or to compel Parent or any of its subsidiaries or affiliates to dispose of or hold separate all or any material portion of the business or assets of the Company and the Subsidiaries, taken as a whole, or (iiibased on claims arising out of or relating to the Offer, the Merger or the transactions contemplated by the Merger Agreement) of Parent and its subsidiaries, taken as a whole, seeking to impose or confirm material limitations on the ability of Crane Parent or Purchaser any of its subsidiaries or affiliates effectively to acquire or exercise full rights of ownership of the Shares, including, without limitation, the right to vote such any Shares acquired or owned by Parent or any of its subsidiaries or affiliates on all matters properly presented to the stockholders Company's stockholders, or seeking to require divestiture by Parent or any of Signal;its subsidiaries or affiliates of any Shares, or that otherwise is reasonably likely to have a Material Adverse Effect.
(b) there shall be any action taken, or any statute, rule, regulation, judgmentinjunction, order or injunction shall be decree enacted, entered, enforced, promulgated promulgated, issued or deemed applicable to the Offer and/or or the Merger, or any other action shall be taken by any Governmental Authority or court, government or governmental authority or agency, domestic or foreign other than the application of the waiting period provisions of the HSR Act to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to resultlikely, directly or indirectly, to result in any of the consequences described referred to in clauses (i) through (iiiv) of subsection paragraph (a) above;; or
(c) there the Company shall have occurred a Material Adverse Effect with respect breached or failed to Signal;
(i) the Board of Directors of Signal shall have withdrawn, modified, or changed its approval or recommendation in respect of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offer, or adverse to Crane or Purchaser, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, (iii) Signal shall have violated or breached perform in any material respect any of its obligations covenants or agreements under Section 6.05 the Merger Agreement, or any of the representations and warranties of the Company set forth in the Merger Agreement shall not be true when made or at any time prior to consummation of the Offer as if made at and as of such time (regardingexcept as to any representation or warranty which speaks as of a specific date, among other things, solicitation which must be untrue as of Competing Transactionssuch date), except for such inaccuracies which, when taken together (in each case without regard to any qualifications as to materiality or Material Adverse Effect contained in the applicable representations and warranties) would not be likely to have a Material Adverse Effect; or
(ivd) the Company shall have entered into, or shall have publicly announced its intention to enter into, an agreement or an agreement in principle with respect to any Acquisition Proposal or the Board of Directors of Signal the Company shall have resolved withdrawn or materially modified in a manner adverse to take any Parent the Board's approval or recommendation of the foregoing actions;Offer or the Merger; or
(e) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the Merger Agreement shall have been terminated in accordance with its terms;
(f) any of the representations and warranties of Signal set forth in the Merger Agreement shall not be true and correct (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warranty) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of its obligations required to be performed by it under the Merger Agreement at or prior to consummation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of the Merger Agreement shall be covered by subsection (d) above and not this subsection (g); provided, further, that with respect to any breach by Signal of the provisions of Section 2.04(a) (other than the first sentence thereof, which has no cure period) of the Merger Agreement, Signal shall be afforded up to thirty (30) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States orwhich, in the case reasonable judgment of Parent in any of the foregoing occurrences existing on or at the time of the commencement of the Offersuch case, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutions, which in the case of clauses (x), (y) or (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on the date of the Merger Agreement (i.e., April 16, 2003). The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph of this Section 14) are for the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with such acceptance for payment or payment. The foregoing conditions are for the sole benefit of Parent and may Purchaser and may, subject to the terms of the Agreement, be waived by Crane or Purchaser, by express Parent and specific action to that effect, Purchaser in whole or in part, part at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane Parent or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances, and each such right shall be deemed an ongoing right, which right that may be asserted at any time and from time to timetime prior to the Effective Time.
Appears in 1 contract
CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provisions provision of the Offer, the Purchaser shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange ActAct (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after expiration or termination of the Offer), to pay for any Shares, and (subject to any such rules or regulations) may postpone the acceptance for payment or payment for any Shares tendered tendered, and, subject to the terms of the Merger Agreement, may amend or terminate the Offer (whether or not any Shares have theretofore been purchased or paid for pursuant to the Offer if Offer) (ia) there shall not unless the following conditions have been validly tendered satisfied: (1) the Minimum Condition and not withdrawn prior to (2) the expiration of Regulatory Approvals and the Offer that number of Shares which, when added to Shares, if any, previously acquired by Purchaser or Crane or any of their respective affiliates, represents a majority of the then total issued and outstanding Shares (assuming, for this purpose, the exercise of all options to purchase shares of Common Stock that have a per share exercise price of less than $13.25), (ii) any applicable waiting period (and any extension(s) thereof) under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer Antitrust Approvals or (iiib) if at any time on or after the date of the Merger Agreement and prior to before the Expiration Date (whether or not any acceptance Shares have theretofore been accepted for payment or payment paid for any Shares pursuant to the Offer), any one or more of the following events shall have occurred:
(a1) there Any Governmental Entity shall be instituted have enacted, issued, promulgated, enforced or be pending by entered any person statute, rule, regulation, executive order, decree, injunction or Governmental Authority any suit, action or proceeding that other order which is reasonably likely to prevail in effect and which (i) challenging restricts, prevents or seeking to restrain or prohibit the making or prohibits consummation of the transactions contemplated by any of the Merger Agreement, including the Offer or the Merger or to substantially deprive Crane of any of its anticipated benefits of the Merger, (ii) seeking to prohibit prohibits, limits or materially limit otherwise adversely affects the ownership or operation by Signal, Crane the Parent or any of their respective its subsidiaries of a material portion of the business, operations all or assets of Signal or Crane and/or its subsidiaries or to compel Signal or Crane to dispose of or hold separate any material portion of the business or assets of Signal or Crane and/or the Company and its subsidiaries as a result or compels the Company, the Parent or any of their subsidiaries to dispose of or hold separate all or any material portion of the Offer business or assets of the Merger or Company and its subsidiaries, (iii) seeking to impose imposes material limitations on the ability of Crane the Parent, the Purchaser or Purchaser any other Subsidiary of the Parent to acquire or exercise effectively full rights of ownership of any Shares, including, without limitation, the right to vote such any Shares acquired by the Purchaser pursuant to the Offer or otherwise on all matters properly presented to the stockholders Stockholders, including, without limitation, the approval and adoption of Signal;
(b) any statute, rule, regulation, judgment, order or injunction shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer and/or Merger Agreement and the Mergertransactions contemplated thereby, or any other action shall be taken by any Governmental Authority or court, other than the application to (iv) in connection with the Offer or the Merger or the transactions contemplated by the Merger Agreement, affects the Purchaser, the Company or any of applicable waiting periods their respective affiliates in a manner which, in the sole judgment of the Purchaser, may have or be likely to have a Company Material Adverse Effect (as defined in the Merger Agreement) or a material adverse effect on the Purchaser or any of its affiliates or otherwise makes consummation of the Offer or the Merger or the consummation of the transactions contemplated by the Merger Agreement unduly burdensome; or
(2) There shall be instituted or pending any action or proceeding before any United States or foreign court or Governmental Entity by any United States or foreign Governmental Entity seeking any order, decree or injunction having any effect set forth in paragraph (1) above; or
(3) The representations and warranties of the Company contained in this Agreement (i) that are qualified by materiality or Company Material Adverse Effect shall not be so true and correct as of the Expiration Date (as the same may be extended from time to time) and (ii) that are not qualified by materiality or Company Material Adverse Effect shall not be true and correct in all material respects as of the Expiration Date (as the same may be extended from time to time), in each case as though made anew on and as of such date (except for representations and warranties made as of a specified date, which shall be so true and correct as of the specified date); or
(4) The Company shall not have performed or complied in all material respects with its covenants under the HSR ActMerger Agreement and such failure continues until the later of (i) 15 calendar days after actual receipt by it of written notice from the Parent setting forth in reasonable detail the nature of such failure or (ii) the Expiration Date; or
(5) There shall have occurred any material adverse change, or any development that is reasonably likely to result, directly or indirectlyresult in a material adverse change, in any the business, financial condition, results of operations or prospects of the consequences described in clauses Company and its subsidiaries, taken as a whole, other than any such material adverse effect resulting from (i) through factors generally affecting the marine seismic industry, the oil field services industry or the United States economy, (ii) the exercise or threatened exercise by Petroleum Geophysical Services ("PGS") of the option to acquire a non-exclusive right to use certain intellectual property of the Company as described in the After Sales Support Agreement, dated as of January 4, 1995, between PGS and Syntron, Inc., a copy of which has been provided by the Company to the Purchaser, or (iii) of subsection (a) above;
(c) there shall have occurred a Material Adverse Effect with respect any failure by the Company to Signal;
(i) meet any specific financial projections or any change in the Board of Directors of Signal shall have withdrawn, modifiedfinancial projections provided to the Purchaser or the Parent, or changed its approval any of their representatives or recommendation in respect advisors, whether provided before or after the date of the Merger Agreement, the Merger or the Offer in a manner adverse to the Merger or the Offerprovided, or adverse to Crane or Purchaserhowever, (ii) the Board of Directors of Signal shall have recommended any Competing Transaction, that this clause (iii) Signal shall have violated or breached in not exclude any material respect adverse effect resulting from any change, effect, event or condition that has had or could reasonably be expected to have a material adverse effect on the business, assets, financial condition or results of its obligations under Section 6.05 operations of the Merger Agreement (regardingCompany and its subsidiaries, among other things, solicitation of Competing Transactions), or (iv) the Board of Directors of Signal shall have resolved to take any of the foregoing actions;taken as a whole; or
(e6) Signal, Purchaser and Crane shall have agreed in writing to terminate the Offer, or the The Merger Agreement shall have been terminated in accordance with its terms;; or
(f7) any of the representations and warranties of Signal set forth in the Merger Agreement The Company Board shall not be true and correct have (without regard to any materiality qualifications or references to Material Adverse Effect contained in any specific representation or warrantyi) as if such representations and warranties were made at the time of any such determination, except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided, that the condition described in this clause (f) shall be deemed not to have been triggered so long as the failure of all such representations and warranties so to be true and correct would not have a Material Adverse Effect on Signal or prevent withdrawn or materially delay the consummation of the Offer;
(g) Signal shall have failed to perform in any material respect any of modified or changed its obligations required to be performed by it under the Merger Agreement at or prior to consummation recommendation of the Offer, which failure to perform is incapable of being cured or, with respect to a failure that is curable, has not been cured within twenty (20) business days after the giving of written notice thereof by Crane to Signal; provided, that any material breach of Section 6.05 of Merger or the Merger Agreement shall be covered (including by subsection amendment of Schedule 14D-9) in a manner adverse to the Purchaser or the Parent or failed to reconfirm its approval or recommendation within five Business Days after a written request to do so, (dii) above and not this subsection approved or recommended, or proposed publicly to approve or recommend, any Company Takeover Proposal, (g); providediii) authorized or caused the Company to enter into a Company Acquisition Agreement, further, that with respect or (iv) resolved or publicly disclosed any intention to do any breach by Signal of the provisions foregoing; or
(8) There shall have occurred (i) any general suspension of, or limitation on prices for, trading in securities on the NYSE or the Paris BOURSE, (ii) a decline of Section 2.04(a) (other than at least 20% in either the first sentence thereofDow ▇▇▇▇▇ Average of Industrial Stocks, which has no cure period) the Standard & Poor's 500 Index or CAC-40 index from the date of the Merger Agreement, Signal shall be afforded up to thirty (30iii) business days to cure such breach; or
(h) there shall have occurred, and continued to exist, (x) a the declaration of a banking moratorium or any limitation or suspension of payments in respect of banks in the United States, (y) a commencement of a war, armed hostilities or other national or international calamity involving the United States or, in the case of any of the foregoing occurrences existing on or at the time of the commencement of the Offer, a material worsening or acceleration thereof, or (z) a material limitation (whether or not mandatory) by any Governmental Authority on the extension of credit by banks or other lending institutionsinstitutions in the United States, which (iv) any commencement of war, armed hostilities or other international or national calamity directly involving the United States or having a significant adverse effect on the functionality of financial markets in the United States, or (v) in the case of clauses any of the foregoing, existing at the time of commencement of the Offer, a material acceleration or worsening thereof; or
(x), 9) The Parent Financing Approvals shall not have been obtained; or
(y10) or The Parent shall not have consummated the rights offering for its ordinary shares in the United States and Europe with gross aggregate proceeds of at least FRF 300,000,000 (z) prevents Crane from borrowing money pursuant to its credit facilities in effect on approximately 46 million Euros as of the date of the Merger Agreement) to the Parent; or
(11) At the time of the consummation of the Offer, the Parent shall not have funds available to it from the Financing sufficient to consummate the Offer and the Merger on the terms contemplated by the Merger Agreement (i.e.the conditions referred to in paragraphs (9), April 16, 2003). The foregoing conditions (including those set forth in clauses (i10) and (ii) of the initial paragraph of this Section 1411) are for referred to herein collectively as the sole benefit of Crane and Purchaser and may be asserted by Crane or Purchaser regardless of the circumstances giving rise to any such conditions and may be waived by Crane or Purchaser, by express and specific action to that effect, in whole or in part, at any time and from time to time in their sole discretion, in each case, subject to any applicable provisions of the Merger Agreement. The failure by Crane or 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, which may be asserted at any time and from time to time."Financing Conditions"); or
Appears in 1 contract