Conditions of the Offer. Notwithstanding any other term of the Offer but subject to the terms set forth in the Merger Agreement, we are not required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to our 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, only after complying with any obligation to extend the Offer pursuant to the Merger Agreement, may terminate the Offer, if: (i) the Minimum Tender Condition is not satisfied; (ii) the Antitrust Condition is not satisfied; or (iii) any of the following conditions shall exist at the time of expiration of the Offer: A. any binding order, injunction, judgment, decree, writ, ruling issued by a competent court or governmental authority, or any law or similar requirement enacted, adopted, promulgated or applied that would (1) make the Offer or the Merger illegal or (2) otherwise prevent the consummation thereof; B. since the date of the Merger Agreement, there shall have occurred and be continuing 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; (1) any representation and warranty of ZOLL set forth in Section 4.02 (relating to corporate power and authorization) or Section 4.05 (relating to capitalization) of the Merger Agreement shall not be true and correct in all but immaterial respects as of the date of the Merger Agreement and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (in which case on and as of such earlier time) or (2) any other representation and warranty of ZOLL set forth in the Merger Agreement shall not be true and correct as of the date of the Merger Agreement and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (in which case on and as of such earlier time), other than in the case of clause (2) for such 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 (it being understood that for this purpose all references to the term “Company Material Adverse Effect” and other Table of Contents qualifications based on the word “material,” except for the reference to the term “Company Material Adverse Effect” in Section 4.10 (relating to the absence of changes to ZOLL), shall be disregarded). Solely for the purposes of clause (1) above, if one or more inaccuracies in the representations and warranties referred to in such clause resulted in or would result in aggregate monetary losses or damages of less than $5,000,000, such inaccuracies will be deemed immaterial; ▇. ▇▇▇▇ shall have failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of ZOLL to be performed or complied with by it under the Merger Agreement prior to such time; ▇. ▇▇▇▇ fails to deliver to us a certificate signed by a senior executive officer of ▇▇▇▇ dated the date on which the Offer expires certifying that the conditions specified in clauses (C) and (D) of this paragraph (iii) do not exist; or F. the Merger Agreement shall have been terminated in accordance with its terms. The conditions set forth in paragraph (ii) and paragraph (iii) above may be waived by Asahi Kasei or Purchaser in whole or in part at any time and from time to time in the sole discretion of Asahi Kasei or Purchaser, subject to the terms of the Merger Agreement and applicable law. Any reference in Offer to Purchase or in the Merger Agreement to a condition or requirement being satisfied shall be deemed met if the condition or requirement is waived. These conditions are in addition to Asahi Kasei’s and Purchaser’s rights to extend, terminate and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement or applicable law. The failure by Asahi Kasei, Purchaser or any other affiliate of Asahi Kasei 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 that may be asserted at any time and from time to time. The Merger Agreement provides for a condition relating to receipt of approval of the Taiwan Fair Trade Commission in respect of Taiwanese merger control rules. Asahi Kasei and Purchaser have waived this condition.
Appears in 1 contract
Sources: Offer to Purchase (Asahi Kasei Corp)
Conditions of the Offer. Notwithstanding any other term For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Offer but subject to Merger Agreement have the terms meanings set forth in the Merger Agreement, we are a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not withdrawn) pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the conditions below. Accordingly, notwithstanding any other provision of the Offer or the Merger Agreement to the contrary, Purchaser shall not be required to accept for payment or, or (subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act Act) pay for, and may delay the acceptance for payment or (relating subject to our obligation to pay for or return any such rules and regulations) the payment for, any tendered Shares promptly after the termination or withdrawal of the Offer)Shares, to pay for any Shares tendered pursuant to and may terminate the Offer and, only after complying with at any obligation to extend scheduled Expiration Date or amend or terminate the Offer pursuant to as permitted by the Merger Agreement, may terminate the Offer, if:
(i) if the Minimum Tender Condition is not satisfied;
(ii) the Antitrust Condition is not satisfied; or
(iii) or any of the following additional conditions shall exist not be satisfied or waived at 12:00 midnight, Eastern Time, on the time of expiration scheduled Expiration Date of the Offer:
A. : • no Governmental Authority having jurisdiction over any binding orderparty to the Merger Agreement shall have issued any Order or taken any other action that is in effect (whether temporary, injunctionpreliminary or permanent) restraining, judgmentenjoining or otherwise prohibiting the Offer or the consummation of the Merger and no Applicable Law (which is defined to include, decreewith respect to any Person, writany international, ruling issued by a competent court national, federal, state or governmental authoritylocal law (statutory, common or any law otherwise), constitution, treaty, convention, ordinance, code, rule, regulation or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise) shall have been adopted that makes the Offer or consummation of the Merger illegal or otherwise prohibited; • each of the representations and warranties contained in Section 5.02(c) of the Merger Agreement (which relate to, among other things, the proper authorization and approval by the Company Board to enter into the Merger Agreement and consummate the transactions contemplated by the Merger Agreement pursuant to Section 251(h) of the DGCL) shall be true in all respects when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which need only be true in all respects as of such specified date); • each of the Specified Company Representations (other than the representations and warranties contained in Section 5.02(c) of the Merger Agreement) which relate to, among other things, the due incorporation and valid existence of the Company, the Company’s corporate power and authority to enter into the Merger Agreement, the execution and performance of the Merger Agreement not contravening the Company’s certificate of incorporation or bylaws, the capitalization of the Company, applicability of the safe harbor provisions of Rule 14d-10 under the Exchange Act to the compensation arrangements between the Company and its directors, officers and employees, the Company’s major customers and suppliers, finders’ fees, receipt of a fairness opinion from the Company’s financial advisor, and the exemption of the Merger Agreement and the transactions contemplated thereby from antitakeover statutes, to the extent not qualified as to materiality or “Company Material Adverse Effect,” shall be true in all material respects, and to the extent so qualified shall be true in all respects, when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any Specified Company Representation that is made only as of a specified date, which need only be true, to the extent not qualified as to materiality or “Company Material Adverse Effect,” in all material respects, and to the extent so qualified, in all respects, in each case as of such specified date); • the Other Company Representations (i.e., those representations and warranties of the Company that are not contained in Section 5.02(c) of the Merger Agreement and that are not Specified Company Representations), disregarding any materiality or Company Material Adverse Effect qualifications contained therein, shall be true when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any Other Company Representations that are made only as of a specified date, which need only to be true as of such specified date); except that the Other Company Representations as thus modified shall be deemed true at any time unless the individual or aggregate impact of the failure to be so true would have or reasonably be expected to have a Company Material Adverse Effect; Table of Contents • Parent shall have received a certificate signed on behalf of the Company by a senior Executive Officer of the Company regarding the accuracy of the representations and warranties of the Company to the above-specified standards, as applicable; • the Company shall have delivered to Parent a certificate of the Company executed by the Secretary of the Company, dated as of the Acceptance Time, certifying: (1i) the approval of the Company Board of the Merger Agreement and the transactions contemplated thereby, (ii) the certificate of incorporation and bylaws (or similar governing documents) of the Company and each of its Subsidiaries, (iii) the name, title, incumbency and signatures of the officers authorized to execute the Merger Agreement and the other agreements contemplated thereby to which the Company is a party, and (iv) any and all Company Board, committee and stockholder resolutions, consents or other actions taken by the Company Board, any committee of the Company Board or the stockholders between the date of the Merger Agreement and the Acceptance Time; • the Company shall have performed in all material respects its obligations under the Merger Agreement, and Parent shall have received a certificate signed on behalf of the Company by a senior Executive Officer of the Company to the foregoing effect; • there shall not be instituted, pending or overtly threatened any Proceeding (which is defined to include any suit, claim, action, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel) initiated by any Governmental Authority: • challenging or seeking to make illegal, delay materially or otherwise directly or indirectly restrain or prohibit the Offer, the acceptance for payment by Purchaser of the Shares tendered pursuant to the Offer or the consummation of the Merger or seeking to obtain material damages in connection therewith; • seeking to restrain or prohibit Parent’s ownership or operation (or that of its Affiliates) of all or any material portion of the business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, taken as a whole, or to compel Parent or any of its Affiliates to dispose of, license (whether pursuant to an exclusive or nonexclusive license) or hold separate all or any material portion of the business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, taken as a whole; • seeking, directly or indirectly, to impose or confirm material limitations on the ability of Parent or any of its Affiliates effectively to acquire, hold or exercise full rights of ownership of Shares or any shares of common stock of the Surviving Corporation, including the right to vote such shares on all matters properly presented to the Company’s stockholders; or • seeking in connection with the Offer, the Merger and the other transactions contemplated by the Merger Agreement to require divestiture by Parent, Purchaser or any of Parent’s other Affiliates of any Equity Interests (which are defined to include any share, capital stock, partnership, member or similar interest in any entity, and any option, warrant, right or security convertible, exchangeable or exercisable therefor); • there shall not be in effect any Order that is reasonably likely to result, directly or indirectly, in any of the effects referred to above in the sub-bullet points included in the immediately preceding bullet point; • the applicable waiting period (and any extension thereof, subject to Section 7.09(d) of the Merger Agreement (which, among other things, provides that neither Parent nor the Company will commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or applicable Foreign Competition Laws without the prior written consent of the other)) applicable to the Offer or the Merger illegal under the HSR Act or any Foreign Competition Law shall have expired or been terminated, and any affirmative approval of a Governmental Authority required under any Foreign Competition Law shall have been obtained (2the condition described in this bullet point, the “Antitrust Condition”); • the Company shall have complied in all respects its obligations under Section 7.01(h) otherwise prevent the consummation thereof;
B. since the date of the Merger AgreementAgreement (which provides that the Company shall not take various actions related to, among other things, the hiring, Table of Contents termination, or modification of the terms of employment or engagement (including compensation) of employees, consultants, contractors and advisors); • there shall have occurred and be continuing has not been any fact, event, change, effect development or development that, individually or in the aggregate, set of circumstances that has had or would reasonably be expected to have, a Company Material Adverse Effect;
(1) any representation and warranty of ZOLL set forth in Section 4.02 (relating to corporate power and authorization) or Section 4.05 (relating to capitalization) of the Merger Agreement shall not be true and correct in all but immaterial respects as of the date of the Merger Agreement and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (in which case on and as of such earlier time) or (2) any other representation and warranty of ZOLL set forth in the Merger Agreement shall not be true and correct as of the date of the Merger Agreement and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (in which case on and as of such earlier time), other than in the case of clause (2) for such 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 Effect; • no Triggering Event (it being understood that for this purpose all references to the term “Company Material Adverse Effect” and other Table definition of Contents qualifications based on the word “material,” except for the reference to the term “Company Material Adverse Effect” which is summarized above in Section 4.10 (relating to the absence of changes to ZOLL), shall be disregarded). Solely for the purposes of clause (111 – “The Merger Agreement; Other Agreements – The Merger”) above, if one or more inaccuracies in the representations and warranties referred to in such clause resulted in or would result in aggregate monetary losses or damages of less than $5,000,000, such inaccuracies will be deemed immaterial;
▇. ▇▇▇▇ shall have failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of ZOLL to be performed or complied with by it under the Merger Agreement prior to such time;
▇. ▇▇▇▇ fails to deliver to us a certificate signed by a senior executive officer of ▇▇▇▇ dated the date on which the Offer expires certifying that the conditions specified in clauses (C) occurred; and (D) of this paragraph (iii) do not exist; or
F. • the Merger Agreement shall not have been terminated in accordance with its terms. The foregoing conditions set forth in paragraph are for the sole benefit of Parent and Purchaser and (iiexcept for the Minimum Condition) and paragraph (iii) above may be waived by Asahi Kasei or Purchaser Parent and Purchaser, in whole or in part at any time and from time to time time, in the sole discretion of Asahi Kasei or Parent and Purchaser. However, subject if an event occurs that will result in a failure of a condition to the terms Offer to be satisfied as of the Merger Agreement and applicable law. Any reference in Offer to Purchase scheduled expiration of the Offer, Purchaser will disclose whether or in the Merger Agreement to a not it is waiving that condition or requirement being satisfied shall be deemed met if promptly after learning of such event unless the condition or requirement is waived. These conditions are in addition to Asahi Kasei’s and Purchaser’s rights to extend, terminate and/or modify one where satisfaction of the condition may be determined only upon expiration of the Offer pursuant or Purchaser is unable to determine whether the terms and conditions event will result in a failure of the Merger Agreement or applicable law. The failure by Asahi Kasei, Purchaser or any other affiliate of Asahi Kasei at any time condition 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 that may be asserted at any time and from time to time. The Merger Agreement provides for a condition relating to receipt of approval of the Taiwan Fair Trade Commission in respect of Taiwanese merger control rules. Asahi Kasei and Purchaser have waived this conditionsatisfied.
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)
Conditions of the Offer. Notwithstanding any other term provisions of the Offer but subject and in addition to Purchaser’s rights to extend, amend or terminate the terms set forth Offer in accordance with the provisions of the Merger AgreementAgreement and applicable law, we are not neither Parent nor Purchaser is required to accept for payment or, subject to any applicable rules and regulations of the SEC, SEC including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to our obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer)Act, to pay for any Shares validly tendered and not validly withdrawn, if:
(a) prior to the Expiration Date, there have not been validly tendered and not validly withdrawn that number of Shares that, when added to the Shares then owned by Parent and its subsidiaries, would represent one Share more than one half of all Shares then outstanding (not including Shares tendered in the Offer pursuant to guaranteed delivery procedures);
(b) any waiting period (and any extension thereof) applicable to the Offer andunder the HSR Act has not terminated or expired prior to the Expiration Date, only after complying with in each case, without the imposition of any obligation condition or requiring a remedy that Move, Parent and/or Purchaser is not required to extend the Offer accept or agree to pursuant to the Merger Agreement, may terminate ;
(c) any of the Offer, iffollowing events exist:
(i) any law or order, injunction or decree has been enacted, enforced, amended, issued, in effect or deemed applicable to the Minimum Tender Condition Offer, by any governmental entity (other than the application of the waiting period provisions of the HSR Act to the Offer or to the Merger), or any governmental entity has taken any other action, in each case the effect of which is to make illegal or otherwise prohibit consummation of the Offer or the Merger (or to impose a condition or require a remedy that the parties are not satisfiedrequired to accept pursuant to the Merger Agreement);
(ii) the Antitrust Condition there is not satisfied; or
pending or threatened (iiiin writing) any of the following conditions shall exist at the time of expiration of the Offer:
A. legal proceeding by any binding order, injunction, judgment, decree, writ, ruling issued by a competent court or governmental authority, or any law or similar requirement enacted, adopted, promulgated or applied entity that would (1) make seeks to enjoin the Offer or the Merger illegal (or (2) otherwise prevent to impose a condition or require a remedy that the consummation thereof;
B. since the date of parties are not required to accept pursuant to the Merger Agreement, there shall have occurred and be continuing 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);
(1iii) the Merger Agreement has been terminated in accordance with its terms; Table of Contents (iv) (A) any representation of the representations and warranty warranties of ZOLL Move set forth in Section 4.02 Sections 4.01 (relating to corporate power organization and authorizationqualification), 4.02(a) or Section 4.05 (relating to capitalization), 4.02(b) (relating to subsidiaries, but solely with respect to RealSelect), 4.03 (relating to the authority to enter into the Merger Agreement and the actions of the Move Board), 4.06(a) (relating to the absence of certain changes), 4.08 (relating to brokers fees and other expenses), 4.20 (relating to the opinion of Move’s financial advisors), 4.21 (relating to the inapplicability of certain state takeover statutes) or 4.22 (relating to matters concerning Rule 14d-10 promulgated under the Exchange Act) of the Merger Agreement shall are not be true and correct in all but immaterial respects as of the date of the Merger Agreement and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (in which case Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier timedate, in which case as of such earlier date), other than, in the case of 4.02(a), any de minimis inaccuracies (whereby (i) issuances or amounts of outstanding preferred stock are not de minimis inaccuracies and (2ii) any other representation inaccuracy that would not reasonably be expected to result in additional cost or liability to Parent of more than $2.5 million shall be deemed to be a de minimis inaccuracy), (B) any of the representations and warranty warranties of ZOLL Move not set forth in the Merger Agreement shall above are not be true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Material Adverse Effect,” “in all material respects,” “in any material respect,” “material,” “materially” or words of similar import set forth therein) as of the date of the Merger Agreement and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (in which case Expiration Date as though made on and as of such date and time (except to the extent expressly made as of an earlier timedate, in which case as of such earlier date), other than except, in the case of this clause (2) for c)(iii)(B), where the failure of any such failures representations and warranties to be so true and correct that, individually or in the aggregate, have has not had and would not reasonably be expected to have a Company Material Adverse Effect (it being understood that for this purpose all references to the term “Company Material Adverse Effect” and other Table of Contents qualifications based on the word “material,” except for the reference to the term “Company Material Adverse Effect” in Section 4.10 (relating to the absence of changes to ZOLL), shall be disregarded). Solely for the purposes of clause (1) above, if one or more inaccuracies in the representations and warranties referred to in such clause resulted in or would result in aggregate monetary losses or damages of less than $5,000,000, such inaccuracies will be deemed immaterial;
▇. ▇▇▇▇ shall have failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of ZOLL to be performed or complied with by it under the Merger Agreement prior to such time;
▇. ▇▇▇▇ fails to deliver to us a certificate signed by a senior executive officer of ▇▇▇▇ dated the date on which the Offer expires certifying that the conditions specified in clauses (C) and (D) of this paragraph (iii) do not exist; or
F. the Merger Agreement shall have been terminated in accordance with its terms. The conditions set forth in paragraph (ii) and paragraph (iii) above may be waived by Asahi Kasei or Purchaser in whole or in part at any time and from time to time in the sole discretion of Asahi Kasei or Purchaser, subject to the terms of the Merger Agreement and applicable law. Any reference in Offer to Purchase or in the Merger Agreement to a condition or requirement being satisfied shall be deemed met if the condition or requirement is waived. These conditions are in addition to Asahi Kasei’s and Purchaser’s rights to extend, terminate and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement or applicable law. The failure by Asahi Kasei, Purchaser or any other affiliate of Asahi Kasei 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 that may be asserted at any time and from time to time. The Merger Agreement provides for a condition relating to receipt of approval of the Taiwan Fair Trade Commission in respect of Taiwanese merger control rules. Asahi Kasei and Purchaser have waived this condition.
Appears in 1 contract
Sources: Offer to Purchase (News Corp)
Conditions of the Offer. Notwithstanding any other term For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Offer but subject to Merger Agreement have the terms meanings set forth in the Merger Agreement, we are a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not withdrawn) pursuant to the Offer is subject to the satisfaction of the Minimum Tender Condition and the conditions below. Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to our Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer) (the “Payment Rules”), to pay for any Shares tendered pursuant to the Offer andand may delay the acceptance for payment of or, only after complying with subject to any obligation applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (subject to extend the Offer pursuant to provisions of the Merger Agreement, ) may terminate the Offer, if:
Offer and not accept for payment any tendered Shares: (i) if the Merger Agreement has been terminated in accordance with Article 8 thereof; or (ii) at any scheduled Expiration Date, if the Minimum Tender Condition is has not been satisfied;
, any waiting period (iiand any extension thereof) applicable to the consummation of the Offer under the HSR Act shall Table of Contents not have expired or been terminated (the “Antitrust Condition is not satisfied; or
(iiiCondition”) or any of the following additional conditions shall exist at not be satisfied or waived by one minute after 11:59 p.m., New York City time, on the time Expiration Date: • there shall not be pending any Action by any Governmental Authority of expiration competent jurisdiction that seeks, directly or indirectly, to make illegal, prohibit, materially delay or otherwise restrain the making of the Offer:
A. any binding order, injunction, judgment, decree, writ, ruling issued by a competent court or governmental authority, or any law or similar requirement enacted, adopted, promulgated or applied that would (1) make the consummation of the Offer or the Merger illegal or (2) otherwise prevent the consummation thereof;
B. since the date performance of the Merger Agreement, there ; • no Governmental Authority of competent jurisdiction shall have occurred and be continuing enacted, issued, promulgated, enforced or entered any eventJudgment (preliminary or permanent) or Law that has resulted in, change, effect or development that, individually or is reasonably likely to result in any of the consequences referred to in the aggregatebullet point above; • each of CoLucid’s representations and warranties set forth in Section 3.1(a), has had or would reasonably be expected Section 3.3(a), Section 3.3(d), Section 3.3(e), Section 3.3(f) and the first sentence of Section 3.6 of the Merger Agreement (which relate to havecorporate organization, corporate power and authority to enter into the Merger Agreement and consummate the transactions contemplated thereby, the approval of the CoLucid Special Committee and the CoLucid Board to enter into the Merger Agreement and consummate the transactions contemplated thereby, the absence of a shareholder rights plan, the proper authorization of the CoLucid Board to exempt the Offer and the Merger from the restrictions under any takeover law and the absence of a Company Material Adverse Effect;
(1Effect since December 31, 2015) any representation and warranty of ZOLL set forth in Section 4.02 (relating to corporate power and authorization) or Section 4.05 (relating to capitalization) of the Merger Agreement shall not be true and correct in all but immaterial respects as of the date of the Merger Agreement and at and as of such time, the Acceptance Time (except to the extent any such representation and or warranty expressly relates to an earlier time (is made as of a specific date, in which case on and as of such earlier time) or (2) any other representation date); • the representations and warranty of ZOLL warranties set forth in Section 3.2 of the Merger Agreement (which relate to capitalization) shall not be true and correct in all respects as of the date of the Merger Agreement and at and as of such time, the Acceptance Time (except to the extent any such representation and or warranty expressly relates to an earlier time (is made as of a specific date, in which case on and as of such earlier timedate), except for any failures to be so true and correct that are de minimis; • the representations and warranties set forth in the Merger Agreement (other than those representations and warranties set forth in Section 3.1(a), Section 3.2, Section 3.3(a), Section 3.3(d), Section 3.3(e), Section 3.3(f) and the case first sentence of clause (2Section 3.6 of the Merger Agreement, which are described above) for such failures to shall be true and correct thatin all respects as of the date of the Merger Agreement and at and as of the Acceptance Time (except to the extent any such representation or warranty is made as of a specific date, in which case as of such date), except where the failure of any of such representations or warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties) has not had, and would not reasonably be expected to have, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect (Effect; • CoLucid shall have complied with or performed in all material respects the covenants and obligations required to be complied with or performed by it being understood that for this purpose all references under the Merger Agreement at or prior to the term “Company Material Adverse Effect” Acceptance Time; • Lilly and other Table of Contents qualifications based on the word “material,” except for the reference to the term “Company Material Adverse Effect” in Section 4.10 (relating to the absence of changes to ZOLL), shall be disregarded). Solely for the purposes of clause (1) above, if one or more inaccuracies in the representations and warranties referred to in such clause resulted in or would result in aggregate monetary losses or damages of less than $5,000,000, such inaccuracies will be deemed immaterial;
▇. ▇▇▇▇▇▇▇▇ shall have failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of ZOLL to be performed or complied with by it under the Merger Agreement prior to such time;
▇. ▇▇▇▇ fails to deliver to us received a certificate signed executed by a senior executive officer CoLucid’s Chief Executive Officer or Chief Financial Officer confirming on behalf of ▇▇▇▇ dated the date on which the Offer expires certifying CoLucid that the conditions specified set forth in clauses (Ce) and (Df) of this paragraph (iii) do not exist; or
F. Annex A to the Merger Agreement shall have been duly satisfied; • the Merger Agreement shall not have been validly terminated in accordance with its terms; and • there shall not have occurred any Company Material Adverse Effect. The foregoing conditions set forth in paragraph are for the sole benefit of Lilly and Purchaser and (iiexcept for the Minimum Tender Condition) and paragraph (iii) above may be waived by Asahi Kasei or Purchaser ▇▇▇▇▇ and Purchaser, in whole or in part at any time and from time to time time, in the sole discretion of Asahi Kasei or Purchaser, subject to the terms of the Merger Agreement and applicable law. Any reference in Offer to Purchase or in the Merger Agreement to a condition or requirement being satisfied shall be deemed met if the condition or requirement is waived. These conditions are in addition to Asahi Kasei’s ▇▇▇▇▇ and Purchaser’s rights to extend, terminate and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement or applicable law. The failure by Asahi Kasei▇▇▇▇▇, Purchaser or any other affiliate of Asahi Kasei Lilly at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right, the waiver of any such right with respect to Table of Contents particular facts and circumstances shall will not be deemed a waiver with respect to any other facts and circumstances and each such right shall will be deemed an ongoing right that may be asserted at any time and from time to time. The Merger Agreement provides for a condition relating to receipt of approval of the Taiwan Fair Trade Commission in respect of Taiwanese merger control rules. Asahi Kasei and Purchaser have waived this condition.
Appears in 1 contract
Sources: Offer to Purchase (Lilly Eli & Co)
Conditions of the Offer. Notwithstanding any other term For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Offer but subject to Merger Agreement have the terms meanings set forth in the Merger Agreement, we are a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not withdrawn) pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the conditions below. Accordingly, notwithstanding any other provision of the Offer or the Merger Agreement to the contrary, Purchaser shall not be required to accept for payment or, or (subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act Act) pay for, and may delay the acceptance for payment or (relating subject to our obligation to pay for any such rules and regulations) the payment for, any tendered Shares, and may amend or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to terminate the Offer and, only after complying with any obligation to extend the Offer pursuant to as permitted by the Merger Agreement, may terminate the Offer, if:
if (i) the Minimum Tender Condition is shall not satisfied;
be satisfied or waived at 12:00 midnight, Eastern Time, at the end of the scheduled Expiration Date of the Offer; or (ii) the Antitrust Condition is not satisfied; or
(iii) any of the following additional conditions shall exist not be satisfied or waived by 12:00 midnight, Eastern Time, at the time end of expiration the scheduled Expiration Date of the Offer:
A. : • no Governmental Authority having jurisdiction over any binding orderparty to the Merger Agreement shall have issued any Order or taken any other action that is in effect (whether temporary, injunctionpreliminary or permanent) restraining, judgmentenjoining or otherwise prohibiting the Offer or the consummation of the Merger and no Applicable Law (which is defined to include, decreewith respect to any Person, writany international, ruling issued by a competent court national, federal, state or governmental authoritylocal law (statutory, common or any law otherwise), constitution, treaty, convention, ordinance, code, rule, regulation or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that would (1is binding upon or applicable to such Person, as amended unless expressly specified otherwise) make shall have been adopted that makes the Offer or consummation of the Merger illegal or (2) otherwise prevent the consummation thereof;
B. since the date prohibited; • each of the Merger Agreement, there shall have occurred representations and be continuing 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;
(1) any representation and warranty of ZOLL set forth warranties contained in Section 4.02 (relating to corporate power 5.02(c) and authorization) or Section 4.05 (relating to capitalization5.17(f) of the Merger Agreement (which relate to, among other things, the proper authorization and approval by the NetSuite Board to enter into the Merger Agreement and consummate the transactions contemplated by the Merger Agreement pursuant to Section 251(h) of the DGCL and the applicability of the safe harbor provisions of Rule 14d-10 under the Exchange Act to the compensation arrangements between NetSuite and its directors, officers and employees) shall not be true and correct in all but immaterial respects when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which need only be true in all respects as of such specified date); • each of the date Specified Company Representations (other than the representations and warranties contained in Section 5.02(c) and Section 5.17(f) of the Merger Agreement) which relate to, among other things, the due incorporation and valid existence of NetSuite, NetSuite’s corporate power and authority to enter into the Merger Agreement, the execution and performance of the Merger Agreement not contravening NetSuite’s certificate of incorporation or bylaws, the capitalization of NetSuite, finders’ fees, receipt of a fairness opinion from NetSuite’s financial advisor, and the exemption of the Merger Agreements and the transactions contemplated thereby from antitakeover statutes, to the extent not qualified as to materiality or “Company Material Adverse Effect,” shall be true in all material respects, and to the extent so qualified shall be true in all respects, when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any Specified Company Representation that is made only as of a specified date, which need only be true, to the extent not qualified as to materiality or “Company Material Adverse Effect,” in all material respects, and to the extent so qualified, in all respects, in each case as of such specified date); • the Other Company Representations (i.e., those representations and warranties of NetSuite that are not contained in Section 5.02(c) and Section 5.17(f) of the Merger Agreement and that are not Specified Company Representations), disregarding any materiality or Company Material Adverse Effect qualifications contained therein, shall be true when made and as of such time, except immediately prior to the extent such representation and warranty expressly relates to an earlier time (in which case on Acceptance Time as if made at and as of such earlier time) or time (2) other than any other representation and warranty Other Company Representations Table of ZOLL set forth in the Merger Agreement shall not Contents that are made only as of a specified date, which need only to be true and correct as of the date of the Merger Agreement and as of such time, specified date); except to that the extent such representation and warranty expressly relates to an earlier Other Company Representations as thus modified shall be deemed true at any time (in which case on and as unless the individual or aggregate impact of such earlier time), other than in the case of clause (2) for such failures failure to be so true and correct that, individually would have or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect (it being understood that for this purpose all references Effect; • Parent shall have received a certificate signed on behalf of NetSuite by a senior Executive Officer of NetSuite certifying to the term “Company Material Adverse Effect” and other Table accuracy of Contents qualifications based on the word “material,” except for the reference to the term “Company Material Adverse Effect” in Section 4.10 (relating to the absence of changes to ZOLL), shall be disregarded). Solely for the purposes of clause (1) above, if one or more inaccuracies in the representations and warranties referred of NetSuite to in such clause resulted in or would result in aggregate monetary losses or damages the above-specified standards, as applicable and to the number of less than $5,000,000, such inaccuracies will be deemed immaterial;
▇. ▇▇▇▇ Shares that were issued and outstanding as of immediately prior to the Acceptance Time; • NetSuite shall have failed delivered to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of ZOLL to be performed or complied with by it under the Merger Agreement prior to such time;
▇. ▇▇▇▇ fails to deliver to us Parent a certificate signed of NetSuite executed by a senior executive officer the Secretary of ▇▇▇▇ NetSuite, dated as of the date on which Acceptance Time, certifying: (i) the Offer expires certifying that approval of the conditions specified in clauses NetSuite Board (Cupon the unanimous recommendation of the Transactions Committee) and (D) of this paragraph (iii) do not exist; or
F. the Merger Agreement shall have been terminated in accordance with its terms. The conditions set forth in paragraph (ii) and paragraph (iii) above may be waived by Asahi Kasei or Purchaser in whole or in part at any time and from time to time in the sole discretion of Asahi Kasei or Purchaser, subject to the terms of the Merger Agreement and applicable law. Any reference the transactions contemplated thereby, (ii) the certificate of incorporation and bylaws (or similar governing documents) of NetSuite and each of its Subsidiaries, (iii) the name, title, incumbency and signatures of the officers authorized to execute the Merger Agreement and the other agreements contemplated thereby to which NetSuite is a party, and (iv) any and all of the NetSuite Board, committee and stockholder resolutions, consents or other actions taken by the NetSuite Board, any committee of the NetSuite Board or the stockholders between the date of the Merger Agreement and the Acceptance Time; • NetSuite shall have performed in all material respects its obligations under the Merger Agreement, and Parent shall have received a certificate signed on behalf of NetSuite by a senior Executive Officer of NetSuite to the foregoing effect; • there shall not be instituted, pending or overtly threatened any Proceeding (which is defined to include any suit, claim, action, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel) initiated by any Governmental Authority: • challenging or seeking to make illegal, delay materially or otherwise directly or indirectly restrain or prohibit the Offer, the acceptance for payment by Purchaser of the Shares tendered pursuant to the Offer or the consummation of the Merger or seeking to Purchase obtain material damages in connection therewith; • seeking to restrain or prohibit Parent’s ownership or operation (or that of its Affiliates) of all or any material portion of the business, assets or products of NetSuite and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, taken as a whole, or to compel Parent or any of its Affiliates to dispose of, license (whether pursuant to an exclusive or nonexclusive license) or hold separate all or any material portion of the business, assets or products of NetSuite and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, taken as a whole; • seeking, directly or indirectly, to impose or confirm material limitations on the ability of Parent or any of its Affiliates effectively to acquire, hold or exercise full rights of ownership of Shares or any shares of common stock of the Surviving Corporation, including the right to vote such shares on all matters properly presented to NetSuite’s stockholders; or • seeking in connection with the Offer, the Merger and the other transactions contemplated by the Merger Agreement to a condition or requirement being satisfied shall be deemed met if the condition or requirement is waived. These conditions are in addition to Asahi Kasei’s and Purchaser’s rights to extend, terminate and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement or applicable law. The failure require divestiture by Asahi KaseiParent, Purchaser or any of Parent’s other affiliate Affiliates of Asahi Kasei at any time Equity Interests (which are defined to exercise include any share, capital stock, partnership, member or similar interest in any entity, and any option, warrant, right or security convertible, exchangeable or exercisable therefor); • there shall not be in effect any Order that is reasonably likely to result, directly or indirectly, in any of the foregoing rights shall not be deemed a waiver of any such right, effects referred to above in 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 that may be asserted at any time and from time to time. The Merger Agreement provides for a condition relating to receipt of approval of sub-bullet points included in the Taiwan Fair Trade Commission in respect of Taiwanese merger control rules. Asahi Kasei and Purchaser have waived this condition.immediately preceding bullet point;
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)
Conditions of the Offer. Notwithstanding any other term For purposes of this Section 15, capitalized terms used but not defined in this Section 15 and defined in the Offer but subject to Merger Agreement have the terms meanings set forth in the Merger Agreement, we are a copy of which is filed as Exhibit (d)(1) to the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not validly withdrawn) pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the other conditions below. The Offer is not subject to any financing condition. Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to our Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer) (the “Payment Rules”), to pay for any Shares tendered pursuant to the Offer andand may delay the acceptance for payment of or, only after complying with subject to any obligation to extend applicable rules and regulations of the Offer pursuant SEC, the payment for, any tendered Shares, and (subject to the Merger Agreement, may terminate the Offer, if:
(i) the Minimum Tender Condition is not satisfied;
(ii) the Antitrust Condition is not satisfied; or
(iii) any of the following conditions shall exist at the time of expiration of the Offer:
A. any binding order, injunction, judgment, decree, writ, ruling issued by a competent court or governmental authority, or any law or similar requirement enacted, adopted, promulgated or applied that would (1) make the Offer or the Merger illegal or (2) otherwise prevent the consummation thereof;
B. since the date provisions of the Merger Agreement, there shall have occurred ) may terminate the Offer and be continuing not accept for payment 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;
tendered Shares: (1i) any representation and warranty of ZOLL set forth in Section 4.02 (relating to corporate power and authorization) or Section 4.05 (relating to capitalization) of if the Merger Agreement shall not be true and correct in all but immaterial respects as of the date of the Merger Agreement and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (in which case on and as of such earlier time) or (2) any other representation and warranty of ZOLL set forth in the Merger Agreement shall not be true and correct as of the date of the Merger Agreement and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (in which case on and as of such earlier time), other than in the case of clause (2) for such 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 (it being understood that for this purpose all references to the term “Company Material Adverse Effect” and other Table of Contents qualifications based on the word “material,” except for the reference to the term “Company Material Adverse Effect” in Section 4.10 (relating to the absence of changes to ZOLL), shall be disregarded). Solely for the purposes of clause (1) above, if one or more inaccuracies in the representations and warranties referred to in such clause resulted in or would result in aggregate monetary losses or damages of less than $5,000,000, such inaccuracies will be deemed immaterial;
▇. ▇▇▇▇ shall have failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of ZOLL to be performed or complied with by it under the Merger Agreement prior to such time;
▇. ▇▇▇▇ fails to deliver to us a certificate signed by a senior executive officer of ▇▇▇▇ dated the date on which the Offer expires certifying that the conditions specified in clauses (C) and (D) of this paragraph (iii) do not exist; or
F. the Merger Agreement shall have has been terminated in accordance with its terms. The conditions set forth in paragraph ; or (ii) and paragraph at one minute past 11:59 p.m. Eastern Time on any scheduled Expiration Date (iii) above as it may be waived by Asahi Kasei extended or Purchaser in whole or in part at any time and from time to time in the sole discretion of Asahi Kasei or Purchaser, subject to the terms of the Merger Agreement and applicable law. Any reference in Offer any requirements to Purchase or in the Merger Agreement to a condition or requirement being satisfied shall be deemed met extend), if the condition Minimum Condition has not been satisfied, or requirement is waived. These conditions are in addition to Asahi Kasei’s and Purchaser’s rights to extend, terminate and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement or applicable law. The failure by Asahi Kasei, Purchaser or any other affiliate of Asahi Kasei at any time to exercise any of the foregoing rights following other conditions shall not be deemed a waiver satisfied or (to the extent permitted by applicable law) waived: • any consent, approval or clearance with respect to, or terminations or expiration of any such rightapplicable mandatory waiting period (and any extension thereof, the waiver of or any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any timing agreements, understandings or commitments obtained by request or other facts and circumstances and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Merger Agreement provides for a condition relating to receipt of approval action of the Taiwan Fair Trade Commission in respect of Taiwanese merger control rules. Asahi Kasei and Purchaser FTC and/or the DOJ, as applicable) imposed under the HSR Act shall have waived this condition.been obtained, shall have been received or shall have terminated or expired, as the case may be;
Appears in 1 contract
Sources: Offer to Purchase (Sanofi)
Conditions of the Offer. Notwithstanding any other term For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Offer but subject to Merger Agreement have the terms meanings set forth in the Merger Agreement, we are a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not withdrawn) pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the conditions below. Accordingly, notwithstanding any other provision of the Offer or the Merger Agreement to the contrary, Purchaser shall not be required to accept for payment or, or (subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act Act) pay for, and may delay the acceptance for payment or (relating subject to our obligation to pay for any such rules and regulations) the payment for, any tendered Shares, and may amend or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to terminate the Offer and, only after complying with any obligation to extend the Offer pursuant to as permitted by the Merger Agreement, may terminate the Offer, if:
(i) if the Minimum Tender Condition is not satisfied;
(ii) the Antitrust Condition is not satisfied; or
(iii) or any of the following additional conditions shall exist not be satisfied or waived at 12:00 midnight, Eastern Time, on the time of expiration scheduled Expiration Date of the Offer:
A. : • no Governmental Authority having jurisdiction over any binding orderparty to the Merger Agreement shall have issued any Order or taken any other action that is in effect (whether temporary, injunctionpreliminary or permanent) restraining, judgmentenjoining or otherwise prohibiting the Offer or the consummation of the Merger and no Applicable Law (which is defined to include, decreewith respect to any Person, writany international, ruling issued by a competent court national, federal, state or governmental authoritylocal law (statutory, common or any law otherwise), constitution, treaty, convention, ordinance, code, rule, regulation or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that would (1is binding upon or applicable to such Person, as amended unless expressly specified otherwise) make shall have been adopted that makes the Offer or consummation of the Merger illegal or (2) otherwise prevent the consummation thereof;
B. since the date prohibited; • each of the Merger Agreement, there shall have occurred representations and be continuing 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;
(1) any representation and warranty of ZOLL set forth warranties contained in Section 4.02 (relating to corporate power and authorization) or Section 4.05 (relating to capitalization5.02(c) of the Merger Agreement (which relate to, among other things, the proper authorization and approval by the Company Board to enter into the Merger Agreement and consummate the transactions contemplated by the Merger Agreement pursuant to Section 251(h) of the DGCL) shall not be true and correct in all but immaterial respects when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which need only be true in all respects as of such specified date); • each of the date Specified Company Representations (other than the representations and warranties contained in Section 5.02(c) of the Merger Agreement) which relate to, among other things, the due incorporation and valid existence of the Company, the Company’s corporate power and authority to enter into the Merger Agreement, the execution and performance of the Merger Agreement not contravening the Company’s certificate of incorporation or bylaws, the capitalization of the Company, applicability of the safe harbor provisions of Rule 14d-10 under the Exchange Act to the compensation arrangements between the Company and as its directors, officers and employees, finders’ fees, receipt of such timea fairness opinion from the Company’s financial advisor, except and the exemption of the Merger Agreements and the transactions contemplated thereby from antitakeover statutes, to the extent such representation and warranty expressly relates not qualified as to an earlier time (in which case on and as of such earlier time) materiality or (2) any other representation and warranty of ZOLL set forth in the Merger Agreement shall not be true and correct as of the date of the Merger Agreement and as of such time, except to the extent such representation and warranty expressly relates to an earlier time (in which case on and as of such earlier time), other than in the case of clause (2) for such 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 (it being understood that for this purpose all references to the term “Company Material Adverse Effect” and other Table of Contents qualifications based on the word “material,” except for the reference shall be true in all material respects, and to the term extent so qualified shall be true in all respects, when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any Specified Company Representation that is made only as of a specified date, which need only be true, to the extent not qualified as to materiality or “Company Material Adverse Effect,” in Section 4.10 (relating all material respects, and to the absence extent so qualified, in all respects, in each case as of changes to ZOLLsuch specified date), shall be disregarded). Solely for the purposes of clause (1) above, if one or more inaccuracies in the representations and warranties referred to in such clause resulted in or would result in aggregate monetary losses or damages of less than $5,000,000, such inaccuracies will be deemed immaterial;
▇. ▇▇▇▇ shall have failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of ZOLL to be performed or complied with by it under the Merger Agreement prior to such time;
▇. ▇▇▇▇ fails to deliver to us a certificate signed by a senior executive officer of ▇▇▇▇ dated the date on which the Offer expires certifying that the conditions specified in clauses (C) and (D) of this paragraph (iii) do not exist; or
F. the Merger Agreement shall have been terminated in accordance with its terms. The conditions set forth in paragraph (ii) and paragraph (iii) above may be waived by Asahi Kasei or Purchaser in whole or in part at any time and from time to time in the sole discretion of Asahi Kasei or Purchaser, subject to the terms of the Merger Agreement and applicable law. Any reference in Offer to Purchase or in the Merger Agreement to a condition or requirement being satisfied shall be deemed met if the condition or requirement is waived. These conditions are in addition to Asahi Kasei’s and Purchaser’s rights to extend, terminate and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement or applicable law. The failure by Asahi Kasei, Purchaser or any other affiliate of Asahi Kasei 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 that may be asserted at any time and from time to time. The Merger Agreement provides for a condition relating to receipt of approval of the Taiwan Fair Trade Commission in respect of Taiwanese merger control rules. Asahi Kasei and Purchaser have waived this condition.
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)