Conditions of the Offer. The Offer shall not be subject to any conditions other than those substantially described as follows: (a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer; (i) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction; (c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated; (d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror; (i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied: a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or b. which if the Offer was consummated, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror; (f) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer; (g) there shall not have occurred any change after December 31, 1998 (other than a change in the market conditions or price of O.S.
Appears in 2 contracts
Sources: Support Agreement (Louisiana Pacific Corp), Support Agreement (Louisiana Pacific Corp)
Conditions of the Offer. The Offer shall not be subject and “Conditions to any conditions other than those substantially described as follows:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in fullMerger”) are tendered under satisfied and to consummate the Offer transactions contemplated by the Merger Agreement, as described above, as promptly as practicable, including: • obtaining all necessary actions or nonactions, waivers, consents and not withdrawn at the expiration approvals from any international, national, federal, state, provincial or local governmental, regulatory or administrative authority, agency, commission, board, court, tribunal, arbitral body, self-regulated entity or similar body, whether domestic or foreign (each, a “Governmental Entity”) and making all necessary registrations and filings and taking all 36 Table of the Offer;
(i) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued Contents steps as may be necessary to obtain an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offerapproval or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-• making, by ▇▇▇▇▇▇ as soon as practicable and by Barrier within ten (10) calendar days of the date of receipt of Parent’s filing by the U.S. Federal Trade Commission (the “FTC”) and the Antitrust Improvements Act Division of 1976 shall have expired the U.S. Department of Justice (the “Antitrust Division”), an appropriate filing of a Notification and Report Form pursuant to the HSR Act, with respect to the transactions contemplated by the Merger Agreement; • making, as promptly as practicable, appropriate filings under the competition, trade regulation or been earlier terminated;
merger control laws of any applicable jurisdiction as determined by Parent and Barrier; • obtaining all necessary consents and waivers under any and all contracts, leases or permits to which Barrier or any of its subsidiaries is a party in connection with the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement (dincluding the Offer and the Merger) any other requisite regulatory so as to maintain and preserve the benefits under such contracts, leases or permits following the consummation of the transactions contemplated thereby (including the Offer and the Merger); and • obtaining all consents, approvals or requirements (including waivers from, or taking other actions with respect to, third parties necessary or advisable to be obtained or taken in connection with the transactions contemplated by the Merger Agreement; provided that, without limitation those the prior written consent of stock exchanges Purchaser, Barrier and securities regulatory authorities its subsidiaries may not pay or commit to pay any amount of cash or other consideration, or incur or commit to incur any liability or other obligation, in connection with obtaining such consent, approval or waiver. The Merger Agreement further provides for cooperation and consultation between Barrier, Parent and Purchaser, subject to certain exceptions, in connection with the making of all filings, notifications and other actions described above. Barrier, Parent and ▇▇▇▇▇▇▇▇▇ agreed under the Investment Canada Act,) shall have been obtained Merger Agreement to inform each other of material communications from the FTC, Antitrust Division or satisfied on terms satisfactory other Governmental Entity regarding the transactions contemplated by the Merger Agreement and reached certain agreements in respect to cooperation in discussions to resolve any such material communications. Under the Offeror;
Merger Agreement, neither Parent nor Purchaser is required to, and Barrier may not, without the prior written consent of Purchaser, become subject to, consent or agree to, or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order (i) no actto sell, actionto hold separate or otherwise dispose of, suit or proceeding shall have been threatened to conduct, restrict, operate, invest or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitationotherwise change, any individualportion of the assets or business of Parent, corporationBarrier or any of their respective affiliates, firm, group or other entity) in Canada or elsewhere and (ii) no lawthat is materially adverse to Parent, regulation Barrier or policy shall have been proposedany respective affiliate thereof, enactedin each case taken as a whole, promulgated either before or applied:
a. after giving effect to cease tradethe Offer and the Merger, enjoin(iii) that requires any material change in the conduct of business of Parent, Barrier or any of their divisions or subsidiaries as currently conducted relating to a material portion of the revenues or earnings of Parent, Barrier and their respective subsidiaries, (iv) that prohibits or restricts or seeks to prohibit or restrict the ownership or operation by Parent (or any of its affiliates or subsidiaries) of any portion of its or Barrier’s business or assets which is material to the business of all such entities taken as a whole, (v) that imposes or seeks to impose material limitations or conditions on the purchase by ability of Parent effectively to acquire or the sale to the Offeror of the Common Shares hold or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares on all matters properly presented to Barrier’s stockholders, (vi) that imposes or seeks to impose any material limitations on the ability of Parent or any of themits respective affiliates or subsidiaries effectively to control in any material respect the business and operations of Barrier and any of its subsidiaries, or
b. (vii) that seeks to obtain from Barrier, Parent or Purchaser material damages as a result of the Merger Agreement, (viii) that would be reasonably likely to materially impair the benefits reasonably expected to be derived by Parent from the transactions contemplated by the Merger Agreement, (ix) that would, or would reasonably be likely to, impose any material cost, liability or obligation on Barrier, Parent, Purchaser or any subsidiaries thereof or (x) which if otherwise is reasonably likely to have a Company Material Adverse Effect (each of (i) through (x), for purposes of the Offer was Merger Agreement, is referred to as a “Burdensome Condition”). The Merger Agreement provides that Barrier will, upon the request of Purchaser, become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Barrier or any of its affiliates, so long as such requirement, condition, understanding, agreement or order is binding on Barrier only in the event that the consummation of the Merger occurs. 37 Table of Contents Whether or not the Merger is consummated, would materially and adversely affect all expenses incurred by or on the Corporation and its Subsidiaries considered on a consolidated basis behalf of Barrier, Parent or Purchaser in connection with the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making Merger, the Offer or taking up and paying for 100% the other transactions described above will be paid by the party incurring those expenses, except (a) Barrier will pay all of the Common Shares under expenses incurred in connection with preparing, filing, printing and mailing the Offer;
offer documents and the Barrier proxy statement and (gb) there shall not have occurred any change after December 31, 1998 (other than a change as otherwise described in the market conditions or price of O.S.“Termination Fees and Expenses” below.
Appears in 1 contract
Conditions of the Offer. The Offer shall not be subject to any conditions other than those substantially described as followsthe following:
(ai) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered there shall have been validly deposited under the Offer and not withdrawn a number of Shares constituting at the expiration least 51% of the Offeroutstanding Shares as of the Expiry Date;
(i) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) at the Commissioner shall have advised time the Offeror that he proposes to take up and pay for the Shares, there does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% all of the Common Shares registered in the names of holders resident in Canada under the Offer;
(iii) all outstanding warrants or options to acquire Shares shall have been exercised, cancelled or otherwise terminated. The foregoing conditions are for the exclusive benefit of the Offeror and may be waived by the Offeror in whole or in part at any time and from time to time. SCHEDULE "B" REPRESENTATIONS AND WARRANTIES OF THE COMPANY
(a) The Company (including all entities controlled by the Company) does not have assets located in the U.S. having an aggregate book value of US$15 million more.
(b) The Company did not make aggregate sales in or into the United States of America of US$25 million or more during its most recent fiscal year.
(c) The Company is a "foreign private issuer" within the meaning of Securities and Exchange Commission ("SEC") Rule 3b-4 and is not an investment company registered or required to be registered under the U.S. Investment Company Act of 1940, as amended.
(d) Less than 40% of each class of the Company's securities outstanding that are subject to the Offer are held by U.S. holders (including affiliates of the Company) and the Company's most recent annual report or annual information form filed or submitted by the Company with any Canadian federal or provincial securities regulator or the SEC did not contain any information to the contrary.
(e) The aggregate trading volume of such securities on securities exchanges and Nasdaq in the United States of America did not exceed the aggregate trading volume of such securities on securities exchanges in Canada and on the Canadian Dealing Network, Inc. ("CDN") over the 12-month period prior to commencement of the Offer (based on volume figures published by such exchanges, Nasdaq and CDN).
(f) None of the Shares is registered pursuant to section 12 of the United States SECURITIES EXCHANGE ACT OF 1934, as amended, and the Company is not an insurance company or a closed-end investment company.
(g) there shall At the date hereof, the only outstanding securities convertible into Shares are options to purchase an aggregate of 2,107,537 Shares at exercise prices not have occurred any change after December 31, 1998 (other less than $2.10 per share and a change in the market conditions or warrant outstanding to purchase 48,107 Shares at an exercise price of O.S.$4.10 per share. SCHEDULE "C" REPRESENTATIONS AND WARRANTIES OF THE OFFEROR
(a) The Offeror has made arrangements to ensure that required funds are available to effect payment in full for all Shares offered to be acquired pursuant to the Offer.
(b) There are no Canadian provincial or United States federal securities regulatory or New York state corporate approvals or consents necessary to make and complete the Offer.
Appears in 1 contract
Conditions of the Offer. The Offer shall Notwithstanding any other provisions of the Offer, Purchaser will not be required to, and Endo will not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the Commission, including Rule 14e-1(c) under the Exchange Act, pay for any tendered Shares unless:
i) there having been validly tendered and not validly withdrawn prior to the expiration date for the Offer (as it may have been extended or re-extended pursuant to the Agreement, the “Expiration Date”) that number of Shares which, when added to the Shares already owned by Endo and its subsidiaries, represents at least a majority of the total number of outstanding Shares on a “fully diluted basis” (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) on the Expiration Date (the “Minimum Tender Condition”);
ii) any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act and any other applicable foreign antitrust, competition or similar law having expired or been terminated;
iii) there being no applicable law and no permanent injunction or other judgment, order or decree entered, promulgated, enforced or issued by any court or other governmental entity of competent jurisdiction in the United States or any material foreign jurisdiction remaining in effect which has the effect of making illegal or otherwise prohibiting the consummation of the Offer, the Merger or the other transactions contemplated by the Merger Agreement, or imposes any material limitations on Endo’s ownership of HealthTronics and the HealthTronics Entities (taken as a whole), or operation of all or a material portion of Endo’s, on the one hand, or HealthTronics’ and the HealthTronics Entities’ (taken as a whole), on the other hand, businesses or assets, or compelling Endo or HealthTronics or any of their respective subsidiaries or any HealthTronics Entity to dispose of or hold separate any material portion of the business or assets of Endo or HealthTronics;
(A) certain representations and warranties of HealthTronics relating to the capitalization of HealthTronics shall be true and correct in all respects both as of the date of the Merger Agreement and as of the Offer Closing Date as though made on and as of the Offer Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all respects on and as of such earlier date), and (B) the representations and warranties of HealthTronics contained in the Merger Agreement and in the certificate delivered by HealthTronics pursuant to subparagraph (vi) below (other than those substantially described referred to in clause (A)) (disregarding for purposes of this subparagraph (iv), any materiality or Company Material Adverse Effect qualifications contained in such representations and warranties) shall be true and correct in all respects both as follows:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% date of the outstanding Class B Subordinate Voting Shares Merger Agreement and as of the Offer Closing Date as though made on and as of the Offer Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all respects on a fully-diluted basisand as of such earlier date), assuming that all rights to acquire Common Shares were except where the failure of any such representations or warranties to be exercised so true and correct would not, individually or in fullthe aggregate, have, or reasonably be expected to have, a Company Material Adverse Effect;
v) are tendered HealthTronics shall have performed in all material respects all obligations required to be performed by it under the Offer and not withdrawn Merger Agreement at the expiration of the Offer;
(i) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant prior to the Offer or Closing Date;
vi) HealthTronics shall have delivered to Endo a certificate, signed by the right chief executive officer and chief financial officer of HealthTronics, to the effect that each of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially conditions specified in subparagraphs (iv) and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror(v) above is satisfied;
(fvii) there shall not exist existing any prohibition at law against temporary restraining order, preliminary injunction, pending or threatened in writing (or in some other manner that can be independently verified by HealthTronics), nor any litigation by any governmental entity pending or threatened in writing (or in some other manner that can be independently verified by HealthTronics), challenging or seeking to enjoin the Offeror making the Offer or taking up and paying for 100% closing of the Common Shares under the Offer;
(g) there shall not have occurred any change after December 31, 1998 (other than a change in the market conditions or price of O.S.the
Appears in 1 contract
Sources: Offer to Purchase (Endo Pharmaceuticals Holdings Inc)
Conditions of the Offer. The Offeror will have the right to withdraw the Offer shall and not be subject take up and pay for, or extend the period of time during which the Offer is open and postpone taking up and paying for, the Shares deposited under the-Offer unless all of the following conditions are satisfied or the Offeror has waived them at or prior to any conditions other than those substantially described as followsthe relevant Expiry Time:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered there shall have been validly deposited under the Offer and not withdrawn as at the expiration Expiry Time of the Offer, such number of Shares which represents at least 66 2/3% of the issued and outstanding Shares calculated on a Diluted Basis, excluding any Shares directly or indirectly owned by the Offeror prior to the Expiry Time of the Offer;
(ib) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; all requisite governmental or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory consents, approvals or requirements decisions (including including, without limitation limitation, those of any stock exchanges and or securities regulatory authorities and under consents from any governmental authority within the Investment Canada Act,People’s Republic of China) that in the Offeror’s judgment, acting reasonably, are necessary or desirable in connection with and required by law to complete the Offer shall have been obtained or satisfied on terms satisfactory to the Offeror, acting reasonably, and all waiting periods imposed by applicable Laws shall have expired or been terminated;
(c) the Offeror shall have determined, acting reasonably, that: (i) no act, action, suit suit, demand or proceeding shall have been threatened in writing or taken before or by any domestic Canadian or foreign court Government Authority or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada Canada, the United States or elsewhere whether or not having the force of Law; and (ii) no lawLaw, regulation or policy shall have been proposed, enacted, promulgated or applied; in either case:
a. A. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer Shares or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of themShares;
B. which, or
b. which if the Offer was consummated, would materially and reasonably be expected to lead to a Material Adverse Change or which would adversely affect the Corporation and ability of the Offeror to effect a Subsequent Acquisition Transaction;
C. which would prevent or materially delay the completion of the acquisition by the Offeror of the Shares pursuant to a Subsequent Acquisition Transaction; or
D. seeking to prohibit or limit the ownership or operation by the Offeror of any material portion of the business of assets of the Company or its Subsidiaries considered on to compel the Offeror or its Subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company or any of its Subsidiaries as a consolidated basis result of the Offer (or the Offerorany Subsequent Acquisition Transaction);
(fd) there shall not exist any prohibition at law Law against the Offeror making the Offer or taking up and paying for 100% of the Common any Shares deposited under the OfferOfferor;
(e) the Company shall have performed all obligations and covenant in all material respects set forth in the Support Agreement and the representations and warranties by the Company in the Support Agreement are true and accurate in all material respects;
(f) the Support Agreement shall not have been terminated, and no event shall have occurred that, with notice of lapse of time or both, gives the Offeror the right to terminate the Support Agreement;
(g) the Lock-Up Agreements shall not have been terminated and shall have been complied with, and no event shall have occurred that, with notice of lapse of time or both, gives the Offeror the right to terminate the Lock-Up Agreements;
(h) there shall not have occurred any change Material Adverse Change since the date of the Support Agreement;
(i) the Offeror shall not have become aware after December 31the date the Support Agreement becomes effective of any untrue statement of a material fact, 1998 (other than or an omission to state a change material fact that is required to be stated or that is necessary to make a statement not misleading in the market conditions light of the circumstances in which it was made and at the date it was made (after giving effect to all subsequent filings in relation to all matters covered in earlier filings), in any Company Report filed by or price on behalf of O.S.the Company with any regulatory authority in Canada or elsewhere, which the Offeror shall have determined in its reasonable judgment constitutes or results in a Material Adverse Change with respect to the Company; and
(j) the Board of Directors shall not have changed, modified or withdrawn any recommendation made by it that the Shareholders accept the Offer or issued a recommendation or communication that has substantially the same effect.
Appears in 1 contract
Sources: Lock Up Agreement (Peru Copper Inc.)
Conditions of the Offer. The obligations of the Offeror to take up and pay for Common Shares deposited under the Offer shall not be subject only to any the satisfaction at the expiry of the Offer of each of the following conditions other than those substantially described as followsonly:
(a) not sufficient Common Shares shall have been and shall remain validly deposited under the Offer such that, upon take up of and payment for such Common Shares, the Offeror will own, directly or indirectly, no less than 66-2/3% of the then outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the OfferShares;
(ib) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission or by any elected or appointed public official or private person Person (including, without limitation, any individual, corporation, firm, group or other entityas defined below) in Canada Canada, the United States or elsewhere elsewhere, whether or not having the force of law, and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied, in either case:
a. (A) to cease trade, enjoin, prohibit or impose material limitations limitations, damages or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, Shares; or
b. which (B) which, if the Offer was were consummated, would materially and adversely affect constitute a Materially Adversely Effect with respect to the Corporation and its Subsidiaries considered on as a consolidated basis or the Offerorwhole;
(fc) there shall not exist have occurred any change (or any condition, event or development involving a prospective change) in the business, operations, assets, capitalization, financial condition, licences, permits, rights, privileges or liabilities, whether contractual or otherwise, of the Corporation which, in the sole judgment of Offeror, constitutes a Materially Adverse Change or may be considered to have a Material Adverse Effect with respect to the Corporation and its Subsidiaries considered as a whole;
(d) there exists no prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer;
(e) all approvals, permits, licences or similar authorizations from any Person (as defined below) shall have been obtained on terms satisfactory to the Offeror, in its sole discretion;
(f) without limiting the scope of the condition in paragraph (e), any applicable statutory waiting periods under the COMPETITION ACT (Canada) shall have expired or otherwise been terminated or satisfied and the Commissioner of Competition shall not have communicated to the Offeror an intention to apply to the Competition Tribunal under the COMPETITION ACT (Canada) to prohibit the Offer from proceeding or to require the Offeror to dispose of any Common Shares or assets acquired pursuant to the Offer;
(g) since October 28, 2005, the Corporation and its affiliates and associates shall not have taken any action, or disclosed any previously undisclosed action taken by them, relating to (i) any issuance of securities or options to purchase securities (other than Common Shares issued on the exercise of previously outstanding stock options), (ii) any payments of dividends or other distributions to the holders of Common Shares, (iii) any agreement or understanding involving the sale, disposition of or other dealing with the businesses or assets of the Corporation or its Subsidiaries, or any part thereof or interest therein or relating to the Corporation's right to manage, operate or control the conduct of its business or any part thereof, (iv) any material change in its capitalization (including, but not limited to, any material increase in the amount or maturity of its consolidated borrowings) or any conversion of short term borrowings to long term borrowings; (v) any material capital expenditures, except in the ordinary course of its business; (vi) any release or relinquishment not in the ordinary course of business of any material contractual rights; or (vii) agreeing or committing to the guarantee of payment of any material indebtedness other than in the ordinary course of business and consistent with past practice;
(h) there shall not exist or have occurred (or, if there does exist or shall have previously occurred, there shall not have been disclosed, generally or to the Offeror) any change (or any condition, event or development involving a prospective change) in the business, operations, assets, capitalization, financial condition, licences, permits, rights, privileges or liabilities, whether contractual or otherwise, of the Corporation or any of its Subsidiaries, which is or may be considered to have a Material Adverse Effect with respect to the Corporation and its Subsidiaries, taken as a whole;
(i) none of the following shall exist or shall have occurred (which has not been cured or waived), or shall be threatened:
(i) any material right, franchise or licence of the Corporation or of any of its Subsidiaries has been impaired or otherwise constitutes a Material Adverse Effect with respect to the Corporation and its Subsidiaries, taken as a whole; or
(ii) any covenant, term or condition in any of the instruments or agreements to which any of the Corporation or its Subsidiaries is a party or to which they or any of their assets are subject that is or may constitute a Material Adverse Effect with respect to the Corporation and its Subsidiaries, taken as a whole (including, but not limited to, any default that might ensue as a result of the Offeror taking up and paying for Common Shares deposited under the Offer);
(j) there shall have not occurred, developed or come into effect or existence any event, action, state, condition or major financial occurrence of national or international consequence or any law, regulation, action, inquiry or other occurrence of any nature whatsoever which materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada;
(k) the Offeror shall not have become aware of any untrue statement of a material fact, or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made and at the date it was made (after giving effect to all subsequent filings in relation to all matters covered in earlier filings) in any document filed by or on behalf of any one or more of the Corporation, the Mutual Funds, the Closed-End Funds and the Limited Partnerships (as the foregoing terms are defined in Schedule B) with the Ontario Securities Commission or any other regulatory authority in Canada or elsewhere, including without limitation, any annual report, financial statements, material change report, press release or management proxy circular or in any document so filed or released by the Corporation to the public;
(l) there shall not have occurred any change after December 31, 1998 (other than a change breach of any of the terms of the Support Agreement or the material terms of the Lock-Up Agreements or any termination of such agreements pursuant to its terms and the representations and warranties in such agreements shall be true and correct in all material respects. Where referred to in the market foregoing conditions, the term "Person" shall be broadly interpreted and includes an individual, body corporate, partnership, joint venture, trust, association, unincorporated organization, the Crown, any governmental agency or any other entity recognized by law. The foregoing conditions are for the exclusive benefit of the Offeror and may be asserted by the Offeror regardless of the circumstances (including any action or price inaction by the Offeror) or may be waived by the Offeror in its sole discretion, in whole or in part, at any time and from time to time without prejudice to any other rights of O.S.the Offeror.
Appears in 1 contract
Sources: Support Agreement (Industrial Alliance Insurance & Financial Services Inc.)
Conditions of the Offer. The Offer shall not be subject to any conditions other than those substantially described as follows:
(a) not less than 66-66 2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;
(i) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer;
(g) there shall not have occurred any change after December 31, 1998 (other than a change in the market conditions or price of O.S.O.S.B.)(or any condition, event or development involving a prospective change) in the business, assets, capitalization, financial condition, licences, permits, rights or privileges, whether contractual or otherwise, of the Corporation or any of its Subsidiaries considered as a whole which was not disclosed prior to the Offer in writing to the Offeror, and which, in the judgment of the Offeror, acting reasonably, is or would be materially adverse to the Corporation and its Subsidiaries considered as a whole;
(h) the Offeror shall have obtained assurances acceptable to it with respect to CAAFS held by the Corporation or such appropriate governmental authorities as it shall consider desirable to ensure that there will be no termination, default (other than a default resulting from a change of control), breach or other adverse effects on the Corporation or the Subsidiaries as a result of the transactions contemplated herein; and
(i) any representation or warranty of any of the Sellers and the Corporation in this Agreement and in the Support Agreement shall not have been, as of the date made, true and correct in all material respects, or the Corporation or any of the Sellers shall not have performed in all material respects any covenant or complied with any agreement to be performed by them under the Support Agreement and this Agreement. The foregoing conditions will be for the sole benefit of the Offeror and may be waived by it in whole or in part at any time.
Appears in 1 contract
Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and not defined in this Section have the meanings set forth in the Merger Agreement, 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 (subject to any conditions other than those substantially described as follows:
(a) not less than 66-2/3% applicable rules and regulations of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basisSEC, assuming that all rights to acquire Common Shares were to be exercised in fullincluding Rule 14e-1(c) are tendered under the Exchange Act) pay for, and may delay the acceptance for payment or (subject to any such rules and regulations) the payment for, any tendered Shares, and may amend or terminate the Offer and not withdrawn at as permitted by the expiration of the Offer;
Merger Agreement, if (i) the Commissioner of Competition (Minimum Condition shall not be satisfied at 12:00 midnight, Eastern Time, at the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 end of the Act scheduled Expiration Date of the Offer, or (ii) any of the following additional conditions shall not be satisfied or (if permitted) waived at 12:00 midnight, Eastern Time, at the end of the day on the scheduled Expiration Date of the Offer: • no Specified Governmental Authority in respect of (i) any Foreign Competition Law in applicable jurisdictions outside the transaction (the "Transaction") which will result from the Offer; United States, (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; HSR Act, or (iii) any Foreign Direct Investment Law in applicable jurisdictions outside the applicable waiting period under section 123 of the Act United States shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been issued any Order or taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals action that is in effect (whether temporary, preliminary or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,permanent) shall have been obtained restraining, enjoining or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to otherwise prohibiting the Offer or the right consummation of the Offeror to own Merger and no applicable law or exercise full rights regulation shall have been adopted by any such Specified Governmental Authority in respect of ownership of (i) any Foreign Competition Law in applicable jurisdictions outside the Common Shares United States, (ii) the HSR Act, or (iii) any of them, or
b. which if Foreign Direct Investment Law in applicable jurisdictions outside the Offer was consummated, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making United States that makes the Offer or taking up and paying for 100% consummation of the Common Shares Merger illegal or otherwise prohibited; • each of the representations and warranties contained in Section 5.02(c) and Section 5.18(f) of the Merger Agreement (which relate to, among other things, the election by the Cerner 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 Offer;
(gExchange Act to the compensation arrangements between Cerner and its directors, officers and employees) there shall not have occurred any change after December 31, 1998 be true in all respects when made and on the Expiration Date as if made on and as of such date (other than any such representation or warranty that is made as of a change specified date, which need only be true in all respects as of such specified date); • each of the market conditions Specified Company Representations (other than the representations and warranties contained in Section 5.02(c) and Section 5.18(f) of the Merger Agreement) (which relate to, among other things, the due incorporation and valid existence of Cerner, Cerner’s corporate power and authority to enter into the Merger Agreement, the execution and performance of the Merger Agreement not contravening Cerner’s certificate of incorporation or price bylaws, the capitalization of O.S.Cerner, finders’ fees, receipt of a fairness opinion from Cerner’s financial advisors, 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 on the Expiration Date as if made on and as of such date (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 Cerner that are not Specified Company Representations), disregarding any materiality or Company Material Adverse Effect qualifications contained therein, shall be true when made and on the Expiration Date as if made on and as of such date (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
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)
Conditions of the Offer. The Offer shall not be subject to any conditions other than those substantially described as follows:
(a) not less than 66-66 2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;
(i) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer;
(g) there shall not have occurred any change after December 31, 1998 (other than a change in the market conditions or price of O.S.
Appears in 1 contract
Conditions of the Offer. The obligations of the Offeror to take up and pay for Common Shares deposited under the Offer shall not be subject only to any the satisfaction at the expiry of the Offer of each of the following conditions other than those substantially described as followsonly:
(a) not sufficient Common Shares shall have been and shall remain validly deposited under the Offer such that, upon take up of and payment for such Common Shares, the Offeror will own, directly or indirectly, no less than 66-2/3% of the then outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the OfferShares;
(ib) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission or by any elected or appointed public official or private person Person (including, without limitation, any individual, corporation, firm, group or other entityas defined below) in Canada Canada, the United States or elsewhere elsewhere, whether or not having the force of law, and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied, in either case:
a. (A) to cease trade, enjoin, prohibit or impose material limitations limitations, damages or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, Shares; or
b. which (B) which, if the Offer was were consummated, would materially and adversely affect constitute a Materially Adversely Effect with respect to the Corporation and its Subsidiaries considered on as a consolidated basis or the Offerorwhole;
(fc) there shall not exist have occurred any change (or any condition, event or development involving a prospective change) in the business, operations, assets, capitalization, financial condition, licences, permits, rights, privileges or liabilities, whether contractual or otherwise, of the Corporation which, in the sole judgment of Offeror, constitutes a Materially Adverse Change or may be considered to have a Material Adverse Effect with respect to the Corporation and its Subsidiaries considered as a whole;
(d) there exists no prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer;
(e) all approvals, permits, licences or similar authorizations from any Person (as defined below) shall have been obtained on terms satisfactory to the Offeror, in its sole discretion;
(f) without limiting the scope of the condition in paragraph (e), any applicable statutory waiting periods under the COMPETITION ACT (Canada) shall have expired or otherwise been terminated or satisfied and the Commissioner of Competition shall not have communicated to the Offeror an intention to apply to the Competition Tribunal under the COMPETITION ACT (Canada) to prohibit the Offer from proceeding or to require the Offeror to dispose of any Common Shares or assets acquired pursuant to the Offer;
(g) since October 28, 2005, the Corporation and its affiliates and associates shall not have taken any action, or disclosed any previously undisclosed action taken by them, relating to (i) any issuance of securities or options to purchase securities (other than Common Shares issued on the exercise of previously outstanding stock options), (ii) any payments of dividends or other distributions to the holders of Common Shares, (iii) any agreement or understanding involving the sale, disposition of or other dealing with the businesses or assets of the Corporation or its Subsidiaries, or any part thereof or interest therein or relating to the Corporation's right to manage, operate or control the conduct of its business or any part thereof, (iv) any material change in its capitalization (including, but not limited to, any material increase in the amount or maturity of its consolidated borrowings) or any conversion of short term borrowings to long term borrowings; (v) any material capital expenditures, except in the ordinary course of its business; (vi) any release or relinquishment not in the ordinary course of business of any material contractual rights; or (vii) agreeing or committing to the guarantee of payment of any material indebtedness other than in the ordinary course of business and consistent with past practice;
(h) there shall not exist or have occurred (or, if there does exist or shall have previously occurred, there shall not have been disclosed, generally or to the Offeror) any change (or any condition, event or development involving a prospective change) in the business, operations, assets, capitalization, financial condition, licences, permits, rights, privileges or liabilities, whether contractual or otherwise, of the Corporation or any of its Subsidiaries, which is or may be considered to have a Material Adverse Effect with respect to the Corporation and its Subsidiaries, taken as a whole;
(i) none of the following shall exist or shall have occurred (which has not been cured or waived), or shall be threatened:
(i) any material right, franchise or licence of the Corporation or of any of its Subsidiaries has been impaired or otherwise constitutes a Material Adverse Effect with respect to the Corporation and its Subsidiaries, taken as a whole; or
(ii) any covenant, term or condition in any of the instruments or agreements to which any of the Corporation or its Subsidiaries is a party or to which they or any of their assets are subject that is or may constitute a Material Adverse Effect with respect to the Corporation and its Subsidiaries, taken as a whole (including, but not limited to, any default that might ensue as a result of the Offeror taking up and paying for Common Shares deposited under the Offer);
(j) there shall have not occurred, developed or come into effect or existence any event, action, state, condition or major financial occurrence of national or international consequence or any law, regulation, action, inquiry or other occurrence of any nature whatsoever which materially adversely affects or involves, or may materially adversely affect or involve, the financial markets in Canada;
(k) the Offeror shall not have become aware of any untrue statement of a material fact, or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made and at the date it was made (after giving effect to all subsequent filings in relation to all matters covered in earlier filings) in any document filed by or on behalf of any one or more of the Corporation, the Mutual Funds, the Closed-End Funds and the Limited Partnerships (as the foregoing terms are defined in Schedule B) with the Ontario Securities Commission or any other regulatory authority in Canada or elsewhere, including without limitation, any annual report, financial statements, material change report, press release or management proxy circular or in any document so filed or released by the Corporation to the public; and
(l) there shall not have occurred any change after December 31, 1998 (other than a change breach of any of the terms of this Agreement or the material terms of the Lock-Up Agreements or any termination of such agreements pursuant to its terms and the representations and warranties in such agreements shall be true and correct in all material respects. Where referred to in the market foregoing conditions, the term "Person" shall be broadly interpreted and includes an individual, body corporate, partnership, joint venture, trust, association, unincorporated organization, the Crown, any governmental agency or any other entity recognized by law. The foregoing conditions are for the exclusive benefit of the Offeror and may be asserted by the Offeror regardless of the circumstances (including any action or price inaction by the Offeror) or may be waived by the Offeror in its sole discretion, in whole or in part, at any time and from time to time without prejudice to any other rights of O.S.the Offeror.
Appears in 1 contract
Sources: Support Agreement (Industrial Alliance Insurance & Financial Services Inc.)
Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in the Merger Agreement, 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 (subject to any conditions other than those substantially described as follows:
(a) not less than 66-2/3% applicable rules and regulations of the outstanding Class A Multiple Voting Shares SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and not less than 66-2/3% may delay the acceptance for payment or (subject to any such rules and regulations) the payment for, any tendered Shares, and may amend or terminate the Offer as permitted by the Merger Agreement, if the Minimum Condition or any of the outstanding Class B Subordinate Voting Shares (following additional conditions shall not be satisfied or waived at 12:00 midnight, Eastern Time, on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration scheduled Expiration Date of the Offer;
(i) : • no Governmental Authority having jurisdiction over any party to the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") Merger Agreement shall have issued an advance ruling certificate under section 102 any Order or taken any other action that is in effect (whether temporary, preliminary or permanent) restraining, enjoining or otherwise prohibiting the Offer or the consummation of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; Merger and no proceedings shall have been taken Applicable Law (which is defined to include, with respect to any Person, any international, national, federal, state or threatened under the merger provisions of Part VIII local law (statutory, common or under section 45 of the Act in respect of the Transaction;
(c) any 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 waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,to such Person, as amended unless expressly specified otherwise) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to adopted that makes the Offer or the right consummation of the Offeror to own Merger illegal or exercise full rights of ownership otherwise prohibited; • each of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially representations and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror;
(fwarranties contained in Section 5.02(c) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under Merger Agreement (which relate to, among other things, the Offer;
(gproper 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) there of the DGCL) shall not have occurred any change after December 31, 1998 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 change specified date, which need only be true in all respects as of such specified date); • each of the market conditions 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 price bylaws, the capitalization of O.S.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, finders’ fees, receipt of a fairness opinion from the Company’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);
Appears in 1 contract
Sources: Offer to Purchase (Oracle Corp)
Conditions of the Offer. The Offeror will have the right to withdraw the Offer shall and not be subject take up and pay for, or extend the period of time during which the Offer is open and postpone taking up and paying for, the Shares deposited under the Offer unless all of the following conditions are satisfied or the Offeror has waived them at or prior to any conditions other than those substantially described as followsthe relevant Expiry Time:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered there shall have been validly deposited under the Offer and not withdrawn as at the expiration Expiry Time of the Offer, such number of Shares which represents at least 66 2/3% of the issued and outstanding Shares calculated on a Diluted Basis, excluding any Shares directly or indirectly owned by the Offeror prior to the Expiry Time of the Offer;
(ib) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; all requisite governmental or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory consents, approvals or requirements decisions (including including, without limitation limitation, those of any stock exchanges and or securities regulatory authorities and under consents from any governmental authority within the Investment Canada Act,People’s Republic of China) which are required in connection with the ownership of the assets and the conduct of the business and operations of the Company as presently conducted) that in the Offeror’s judgment, acting reasonably, are necessary or desirable in connection with and required by law to complete the Offer shall have been obtained or satisfied on terms satisfactory to the Offeror, acting reasonably, and all waiting periods imposed by applicable Laws shall have expired or been terminated;
(c) the Offeror shall have determined, acting reasonably, that: (i) no act, action, suit suit, demand or proceeding shall have been threatened in writing or taken before or by any domestic Canadian or foreign court Government Authority or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada Canada, the United States or elsewhere whether or not having the force of Law; and (ii) no lawLaw, regulation or policy shall have been proposed, enacted, promulgated or applied; in either case:
a. A. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer Shares or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of themShares;
B. which, or
b. which if the Offer was consummated, would materially and reasonably be expected to lead to a Material Adverse Change or which would adversely affect the Corporation and ability of the Offeror to effect a Subsequent Acquisition Transaction;
C. which would prevent or materially delay the completion of the acquisition by the Offeror of the Shares pursuant to a Subsequent Acquisition Transaction; or
D. seeking to prohibit or limit the ownership or operation by the Offeror of any material portion of the business of assets of the Company or its Subsidiaries considered on to compel the Offeror or its Subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company or any of its Subsidiaries as a consolidated basis result of the Offer (or the Offerorany Subsequent Acquisition Transaction);
(fd) there shall not exist any prohibition at law Law against the Offeror making the Offer or taking up and paying for 100% of the Common any Shares deposited under the OfferOfferor;
(e) the Company shall have performed all obligations and covenant in all material respects set forth in this Agreement and the representations and warranties by the Company in this Agreement are true and accurate in all material respects;
(f) this Agreement shall not have been terminated, and no event shall have occurred that, with notice of lapse of time or both, gives the Offeror the right to terminate this Agreement;
(g) the Lock-Up Agreements shall not have been terminated and shall have been complied with, and no event shall have occurred that, with notice of lapse of time or both, gives the Offeror the right to terminate the Lock-Up Agreements;
(h) there shall not have occurred any change Material Adverse Change since the date of this Agreement;
(i) the Offeror shall not have become aware after December 31the date this Agreement becomes effective of any untrue statement of a material fact, 1998 (other than or an omission to state a change material fact that is required to be stated or that is necessary to make a statement not misleading in the market conditions light of the circumstances in which it was made and at the date it was made (after giving effect to all subsequent filings in relation to all matters covered in earlier filings), in any Company Report filed by or price on behalf of O.S.the Company with any regulatory authority in Canada or elsewhere, which the Offeror shall have determined in its reasonable judgment constitutes or results in a Material Adverse Change with respect to the Company; and
(j) the Board of Directors shall not have changed, modified or withdrawn any recommendation made by it that the Shareholders accept the Offer or issued a recommendation or communication that has substantially the same effect.
Appears in 1 contract
Sources: Lock Up Agreement (Peru Copper Inc.)
Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in the Merger Agreement, 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 properly withdrawn) pursuant to the Offer shall not is subject to the satisfaction of the conditions below (the “Offer Conditions”). Neither Parent nor Purchaser will 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 Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for any Shares tendered pursuant to the Offer if, at the then-scheduled expiration of the Offer, any of the following conditions other than those substantially described as followshave not been satisfied or waived in writing by Parent or Purchaser:
(a) not less than 66-2/3% the Minimum Condition has been satisfied;
(b) any waiting period (and any extension thereof) applicable to the consummation of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;
(i) the Commissioner of Competition (the "Commissioner") appointed Merger under the Competition HSR Act (Canada) (the "Act") shall have issued an advance ruling certificate has been terminated or has expired, and any other clearance, approval or consent under section 102 any other applicable antitrust law of the Act any governmental authority within any jurisdiction in respect which Parent or any of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; its affiliates operate their respective businesses or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have own any assets has been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transactionobtained;
(c) none of the following events, conditions, circumstances, state of facts or developments exist or have occurred and are continuing:
(i) any judgment preventing the consummation of the Offer or the Merger has been issued by any governmental authority of competent jurisdiction within any jurisdiction in which Parent or any of its affiliates operate their respective businesses or own any assets and remain in effect, or there is any law enacted or deemed applicable waiting periods by any such governmental authority to the Offer or the Merger that makes consummation of the Offer or the Merger illegal;
(ii) any Proceeding has been instituted, pending or threatened in writing by any governmental authority within any jurisdiction in which Parent or any of its affiliates operate their respective businesses or own any assets seeking (1) a Non-Required Remedy or (2) to enjoin, make illegal or otherwise prohibit the consummation of the Offer of the Merger (the conditions set forth in (b), (c)(i) and (c)(ii) above, the “Antitrust and Judgment/Illegality Conditions”);
(iii) Pandion and Parent have agreed in writing that the Offer or the Merger Agreement be terminated, or the Merger Agreement has been terminated in accordance with its terms;
(iv) (1) any of the representations and warranties of Pandion set forth in Section 5.1 (Organization), clauses (a) and (b)(i) of Section 5.3 (Authorization; No Conflict), Section 5.4 (Subsidiaries), Section 5.10 (Broker’s or Finder’s Fees), Section 5.13 (Opinion of Financial Advisor) or Section 5.23 (Takeover Provisions) of the Merger Agreement are not true and correct in all material respects as of February 24, 2021 and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (2) any of the representations and warranties of Pandion set forth in Section 5.2 (Capitalization) of the Merger Agreement are not true and correct in all respects (other than de minimis inaccuracies) as of February 24, 2021 and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (3) any of the representations and warranties of Pandion set forth in clause (a) of Section 5.7 (Absence of Material Adverse Effect) of the Merger Agreement are not true and Table of Contents correct in all respects as of February 24, 2021 and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) or (4) any representations and warranties of Pandion set forth in the Merger Agreement (other than those listed in the preceding clauses (1), (2) or (3) of this (iv)) are not true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Company Material Adverse Effect,” “in all material respects,” “in any material respect,” “material” or “materially”) as of February 24, 2021 and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (4), where the failure of any such representations and warranties to be so true and correct would not, and would not be reasonably expected to, have, individually or in the aggregate, a Company Material Adverse Effect;
(v) Pandion has failed to perform or comply in any material respect with any obligation, agreement or covenant required to be performed or complied with by it under the Merger Agreement prior to the Expiration Date and such failure remains uncured; or
(vi) since February 24, 2021, there has occurred any event, condition, change, occurrence or development of a state of facts that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; or
(▇▇▇▇-▇▇▇▇▇-) ▇▇▇▇▇▇ Antitrust Improvements Act has received a certificate signed on behalf of 1976 shall have expired Pandion by the chief executive officer or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those chief financial officer of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory Pandion to the Offeror;
effect that none of the conditions in (ic)(iv), (c)(v) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (iic)(vi) no lawhave occurred and are continuing. The foregoing conditions are for the sole benefit of Parent and Purchaser, regulation may be asserted by Parent or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror Purchaser regardless of the Common Shares circumstances giving rise to any such conditions, and may be waived by Parent or Purchaser in whole or in part at any of them pursuant time and from time to time in their sole discretion; provided that the Offer or Minimum Condition and the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially Antitrust and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer;
(g) there shall not have occurred any change after December 31, 1998 Judgment/Illegality Conditions (other than the condition in (c)(ii)(1) above which may be waived by ▇▇▇▇▇▇ and Purchaser in their sole discretion) may be waived by ▇▇▇▇▇▇ and Purchaser only with the prior written consent of Pandion, which may be granted or withheld in ▇▇▇▇▇▇▇’s sole discretion. The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a change in the market conditions or price waiver of O.S.any such right and each such right will be deemed an ongoing right which may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. The Offeror shall have the right to withdraw the Offer shall and not be subject take up and pay for, or extend the period of time during which the Offer is open and postpone taking up and paying for, any Shares deposited under the Offer unless all of the following conditions, are satisfied or waived by the Offeror at or prior to any conditions other than those substantially described as followsthe expiry time on or prior to the Expiry Date:
(a) not less than 66-2/3% of on the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered Expiry Date there shall have been validly deposited under the Offer and not withdrawn a number of Shares which constitutes at the expiration least 66 2/3% of the Offeroutstanding Shares (calculated on a fully diluted basis) (the “Minimum Condition”);
(ib) all government or regulatory filings, consents, clearances or approvals (including in Canada, the United States or elsewhere) which are required by law in connection with the Offer and the acquisition of Shares pursuant to the Offer or a Compulsory Acquisition or Subsequent Acquisition Transaction, including without limitation consents, clearances or approvals of any stock exchanges or other regulatory authorities, shall have been made or obtained on terms and conditions satisfactory to the Offeror in its sole judgment, acting reasonably;
(c) without limiting the scope of the condition in paragraph (b), the Commissioner of Competition shall have issued an Advance Ruling Certificate under section 102 of the Competition Act (Canada) regarding the "Commissioner") appointed purchase of the Shares by the Offeror or shall have issued a “no-action” letter which reserves to the Commissioner the right to challenge the purchase of the Shares by the Offeror at any time within three years after completion of such Offer but which is otherwise on terms and conditions satisfactory to the Offeror in its sole judgment, advising that the Commissioner of Competition does not at the time of such letter intend to make an application under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (purchase of the "Transaction") which will result from Shares by the OfferOfferor; (ii) the Commissioner Offeror shall have advised be satisfied that the Minister responsible for the Investment Canada Act (Canada) has made an assessment and issued a notice to the Offeror under the Investment Canada Act (Canada) that he does not intend at the current time completion of the transaction represented by the Offer is of a net benefit to apply Canada, on terms and conditions satisfactory to the Competition Tribunal for an order under section 92 of the Act Offeror in respect of the Transactionits sole judgment; or (iii) the applicable filings and waiting period periods, if any, under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; (Canada) and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 (United States) shall have been made, waived, or expired or terminated, and as the case may be; (iv) any investigation by the US Department of Justice or the Federal Trade Commission in relation to the Offer shall have been concluded on terms and conditions that are satisfactory to the Offeror in its sole judgment; and (v) any applicable filings, waiting periods or consents under any other competition, merger control or similar law, rule, regulation or policy or any approval or consent of any Governmental Authority in respect of competition or merger control matters having jurisdiction, or any investigation or inquiry by any Governmental Authority, shall have been made, waived, terminated or expired or been earlier terminatedobtained on terms and conditions satisfactory to the Offeror in its sole judgment, as the case may be1;
(d) there shall not exist any other requisite regulatory approvals or requirements prohibition at law (including without limitation those any injunction or restraining order in any jurisdiction in Canada or the United States or elsewhere) against the Offeror making the Offer or taking up and paying for any of stock exchanges and securities regulatory authorities and the Shares under the Investment Canada Act,) shall have been obtained Offer or satisfied on terms satisfactory to the Offerorcompleting any Compulsory Acquisition or any Subsequent Acquisition Transaction;
(ie) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic Governmental Authority in Canada, the United States or foreign court elsewhere, whether or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (includingnot having the force of law, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:, in the case of either (i) or (ii):
a. (i) to cease trade, enjoin, prohibit or impose material limitations or conditions on on, or to materially increase the cost of, the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right rights of the Offeror to own the Company or exercise full rights of ownership of the Common Shares or any of them, Shares; or
b. which (ii) which, if the Offer was were consummated, would reasonably be expected in the Offeror’s sole judgment, materially and adversely affect the Corporation and its Subsidiaries considered on Offeror, the Company or Nucor or their respective subsidiaries or joint ventures; or
(iii) which challenges or would prevent the completion of the acquisition by the Offeror of Shares pursuant to a consolidated basis Compulsory Acquisition or a Subsequent Acquisition Transaction; 1 For the Offeror;purposes of this paragraph (c) only, any reference to the Offer or to the acquisition or purchase of Common Shares pursuant thereto or in connection therewith shall include any acquisition of Common Shares pursuant to or in connection with a Compulsory Acquisition or a Subsequent Acquisition Transaction.
(f) there no Material Adverse Effect shall not exist any prohibition at law against have occurred since the Offeror making the Offer or taking up and paying for 100% date of the Common Shares under the OfferAgreement;
(g) after the date of this Agreement, there shall not have occurred any change after December 31, 1998 reorganization of the Company or its Subsidiaries (other than a change Pre-Acquisition Reorganization pursuant to Section 2.5(4)) any transaction or series of transactions involving the Company or its Subsidiaries that would or could have the effect of preventing the Offeror from obtaining a full tax cost ‘bump’ pursuant to paragraph 88(1)(d) of the Canadian Tax Act in respect of the shares of the Subsidiaries and any other non-depreciable capital property owned by the Company or its Canadian Subsidiaries on the date hereof.
(h) the Offeror shall not have become aware of any untrue statement of material fact, or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the market light of the circumstances in which it was made and at the date it was made (after giving effect to all subsequent filings filed before the date of the Offer in relation to all matters covered in earlier filings), in any document filed by or on behalf of the Company, or any Subsidiary with any securities regulatory authority in any of the provinces of Canada or in the United States within the six (6) years prior to the date of this Agreement; and
(i) the Company shall have complied in all material respects with its covenants and obligations under the Support Agreement to be complied with at or prior to the expiry time of the Offer and all representations and warranties of the Company under the Support Agreement shall be true and correct in all material respects at the expiry time of the Offer (except to the extent that any such representation or warranty is expressed to be given as of a specific date, in which case such representation or warranty shall be true and correct as of such date) and the Support Agreement shall not have been terminated. The foregoing conditions shall be for the exclusive benefit of the Offeror and may be waived by the Offeror in whole or price of O.S.in part at any time and from time to time, both before or after the Expiry Date, without prejudice to any other rights that the Offeror may have.
Appears in 1 contract
Sources: Support Agreement (Nucor Corp)
Conditions of the Offer. The Notwithstanding any other provision of the Offer or the Merger Agreement, neither Parent or the Purchaser shall not be required to accept for payment or, subject to the applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and (subject to any conditions other than those substantially described as follows:
(asuch rules or regulations) not less than 66-2/3% of may, to the outstanding Class A Multiple Voting extent expressly permitted by the Merger Agreement, delay the acceptance for payment for, or the payment for, any Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights validly tendered pursuant to acquire Common Shares were to be exercised in full) are tendered under the Offer and not properly withdrawn, and, to the extent permitted by the Merger Agreement, may amend or terminate the Offer if (a) there has not been validly tendered in the Offer and not validly withdrawn prior to the Expiration Date a number of Shares which, when taken together with the Shares, if any, then owned by Parent or Purchaser (if any), represents at least a majority of the total Shares then outstanding determined on a fully diluted basis (assuming the conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof and the exclusion of any treasury stock). (the "Minimum Condition"); (b) any waiting periods (and any extensions thereof) applicable to the Offer or the Merger under the HSR Act or Competition Act (Canada) shall not have expired or been earlier terminated and any other applicable, agreed upon governmental authorization under antitrust, competition or merger control laws, shall not have been granted or the relevant waiting period shall not have expired or been earlier terminated; (c) any of the following events or conditions shall occur and be continuing at the expiration of the Offer;scheduled Expiration Date:
(i) there shall have been instituted and be pending any legal action by any governmental entity of competent jurisdiction that seeks to restrain, enjoin or otherwise prohibit the Commissioner making or consummation of Competition the Offer or the Merger;
(ii) there shall have been (A) any judgment, Order or injunction entered or issued by any governmental entity of competent jurisdiction or (B) any applicable law promulgated, enacted, entered, enforced, issued or amended by any governmental entity of competent jurisdiction that would result in any of the "Commissioner"consequences referred to in clause (i) appointed above;
(iii) (A) the Company shall have failed to perform or comply in any material respect with any covenants required by the Merger Agreement to be performed or complied with by it prior to the Expiration Date, and such failure to perform or comply shall not have been cured prior to the Expiration Date, (B) the representations and warranties of the Company contained in Article IV of the Merger Agreement (other than Sections 4.02, 4.03(a) and 4.03(b)) shall not be true and correct (without regard to materiality or Company Material Adverse Effect qualifiers contained therein) as of the date of the Merger Agreement and as of the Expiration Date as if made at and as of such time (other than representations and warranties made as of a specified date, in which case as of such specified date), except for where the failure to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and (C) the representations and warranties of the Company contained in Sections 4.02, 4.03(a) and 4.03(b) of the Merger Agreement shall not be true and correct (except, in the case of Section 4.02, for inaccuracies which are, individually and in the aggregate, immaterial) as of the date of the Merger Agreement and as of the Expiration Date as if made at and as of such time (other than such representations and warranties made as of specified date, in which case as of such specified date);
(iv) the Merger Agreement shall have been terminated in accordance with its terms;
(v) Purchaser and the Company shall have reached mutual agreement to postpone the acceptance for payment of Shares thereunder;
(vi) there shall have been a Company Material Adverse Effect or the occurrence of any event or the arising of any circumstance that would reasonably be expected to have a Company Material Adverse Effect; or
(vii) the Company shall not have furnished Parent with a certificate dated as of the date of determination signed on its behalf by the chief executive officer or chief financial officer to the effect that the conditions set forth in item (iii) above shall not have occurred and continue to exist. We have determined and agreed with the Company that the Offer and Merger meet the jurisdictional thresholds of reporting under the HSR Act and the Competition Act (Canada) (and are therefore subject to the "Act") shall have issued an advance ruling certificate under section 102 provisions of such regulations. For purposes of the Act Merger Agreement, any event, occurrence, fact, condition or change will be deemed to have a "Company Material Adverse Effect" on the Company and its subsidiaries if such event, occurrence, fact, condition or change, individually or in respect the aggregate, would be materially adverse to the business, results of operations, financial condition, or assets of the transaction Company and its subsidiaries, taken as a whole, excluding in each case events, occurrences, facts, conditions or changes arising out of, relating to or resulting from: (a) changes or developments generally affecting the "Transaction") which will result from the Offereconomy, financial, banking, credit or securities markets; (iib) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 changes in applicable law or GAAP or accounting principles or regulations of the Act in respect of SEC or the Transactioninterpretation thereof; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under failure of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act Company and its subsidiaries to meet revenue or earnings projections, forecasts, estimates or expectations (whether internal or published by the Company or third parties), or any decline in the credit rating of 1976 shall have expired the Company or been earlier terminated;
any of its subsidiaries, it being understood that the facts and circumstances giving rise to such failure may be deemed to constitute, and may be taken into account in determining whether there has been, a Company Material Adverse Effect if such facts and circumstances do not otherwise fall within any of the other exceptions to the definition of "Company Material Adverse Effect"); (d) the announcement of the transactions contemplated by the Merger Agreement; (e) any other requisite regulatory approvals outbreak or requirements escalation of war or any act of terrorism; (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,f) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (natural disasters including, without limitation, any individual, corporation, firm, group or other entityhurricanes and tropical storms; (g) general changes in Canada or elsewhere industries in which the Company and its subsidiaries operate; and (iih) no lawany effect arising out of any action taken or omitted to be taken at the request or with the consent of Parent or Purchaser; provided, regulation that any event, occurrence, fact, condition or policy change referred to in clauses (a), (b), (e), or (g) immediately above shall have been proposedbe taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur to the extent that such event, enactedoccurrence, promulgated fact, condition or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions change has a disproportionate effect on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially and adversely affect the Corporation Company and its Subsidiaries considered on subsidiaries, taken as a consolidated basis whole, compared to other participants in the industries in which the Company and its subsidiaries conduct their businesses, and provided, further, that any event, occurrence, fact, condition or the Offeror;
change referred to in clause (f) there immediately above shall be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change is due to the failure of the Company to have a suitable disaster recovery plan or offsite backup system in place, or the Company's inability to adequately execute a suitable disaster recovery plan or offsite backup system in a timely fashion. Subject to the terms and conditions of the Merger Agreement, the foregoing conditions are for the sole benefit of Parent and Purchaser and, (x) subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC and (y) other than the Minimum Condition, may be waived by Parent or Purchaser, in whole or in part, at any time, at the sole discretion of Parent or Purchaser. Subject to the applicable rules and regulations of the SEC, the failure by Parent or Purchaser at any time to exercise any of the foregoing rights shall not exist be deemed a waiver of any prohibition at law against such right, the Offeror making the Offer or taking up waiver of any such right with respect to particular facts and paying for 100% of the Common Shares under the Offer;
(g) there circumstances shall not have occurred be deemed a waiver with respect to any change after December 31, 1998 (other than a change in the market conditions or price of O.S.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.
Appears in 1 contract
Conditions of the Offer. The Offer shall not be subject to any conditions other than those substantially described as follows:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;
(i) the Commissioner The obligations of Competition Merger Sub to (the "Commissioner"and of Parent to cause Merger Sub to) appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal accept for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; payment, and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitationpay for, any individual, corporation, firm, group or other entityand all Shares validly tendered (and not validly withdrawn) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer shall be subject to the terms and conditions of this Agreement, including the satisfaction (or to the right extent waivable, the waiver by Parent or Merger Sub) of the Offeror to own Minimum Condition and the satisfaction or exercise full rights of ownership waiver of the Common Shares or any conditions set forth in Annex I (collectively, the “Offer Conditions”) and no other conditions.
(ii) Merger Sub expressly reserves the right, to the extent permitted by applicable Law, to (A) increase the amount of them, or
b. which if cash constituting the Offer was consummatedPrice and/or (B) waive any Offer Condition (to the extent permitted under applicable Laws); provided, would materially and adversely affect however, that without the Corporation and its Subsidiaries considered on a consolidated basis prior written consent of the Company: (1) the Minimum Condition may not be amended or the Offeror;
waived, (f2) there Merger Sub shall not exist (and Parent shall cause Merger Sub not to) decrease the Offer Price and (3) Merger Sub shall not (and Parent shall cause Merger Sub not to) make any prohibition at law against change to the Offeror making Offer that (u) changes the form of consideration to be delivered by Merger Sub pursuant to the Offer, (v) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (w) imposes conditions or requirements to the Offer in addition to the Offer Conditions, (x) except as provided in Section 2.1 (c), terminates the Offer or taking up and paying for 100% accelerates, extends or otherwise changes the Expiration Date of the Common Offer, or (y) otherwise amends or modifies any of the other terms of the Offer in a manner that adversely affects any holder of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or prevent, delay or impair the ability of Parent or Merger Sub to consummate the Offer or the Merger, or (z) provides for any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be withdrawn prior to the Expiration Date (as required to be extended hereby) of the Offer;
(g) there shall not have occurred any change after December 31, 1998 (other than a change unless this Agreement is terminated in the market conditions or price of O.S.accordance with Article IX.
Appears in 1 contract
Conditions of the Offer. The 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, Purchaser shall not be required to accept for payment or, subject to any conditions other than those substantially described as follows:
(a) not less than 66-2/3% applicable rules and regulations of the outstanding Class A Multiple Voting SEC, including Rule 14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay for or return tendered Common Shares and not less than 66-2/3% promptly after termination or withdrawal of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basisOffer), assuming that all rights pay for, and may delay the acceptance for payment of or, subject to acquire the restriction referred to above, the payment for, any tendered Common Shares, and may terminate the Offer as to any Common Shares were not then paid for, if, in the sole judgment of Purchaser (1) at or prior to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;
Offer any one or more of the Minimum Condition, the Affiliated Transaction Condition, the Control Share Condition, the Supermajority Vote Condition, the Rights Condition, the Lockup Termination Condition or the Insurance Regulatory Approval Condition has not been satisfied, (i2) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 1976, as amended (the "HSR Act"), applicable to the purchase of Common Shares pursuant to the Offer shall not have expired or been earlier terminated;, or (3) at any time on or after January 27, 1998 and prior to the acceptance for payment of Shares, any of the following events shall occur:
(da) there shall have been threatened, instituted or pending any action, proceeding, application or counterclaim before any court, governmental regulatory or administrative agency or commission, authority or tribunal, domestic, foreign or supranational, by any government, governmental authority or other regulatory or administrative agency or commission, domestic, foreign or supranational, or by any other requisite regulatory approvals person, domestic or requirements foreign (whether brought by the Company, an affiliate of the Company or any other person), which (i) challenges or seeks to challenge the acquisition by Parent or Purchaser or any affiliate of either of them of the Common Shares, restrains, delays or prohibits or seeks to restrain, delay or prohibit the making of the Offer or the Proposed Merger, consummation of the transactions contemplated by the Offer or any other subsequent business combination, restrains or prohibits or seeks to restrain or prohibit the performance of any of the contracts or other arrangements entered into by Purchaser or any of its affiliates in connection with the acquisition of the Company or obtains or seeks to obtain any material damages or otherwise directly or indirectly relating to the transactions contemplated by the Offer, the Proposed Merger or any other subsequent business combination, (ii) prohibits or limits or seeks to prohibit or limit Parent's or Purchaser's ownership or operation of all or any portion of their or the Company's business or assets (including without limitation those the business or assets of stock exchanges their respective affiliates and securities regulatory authorities and under the Investment Canada Act,) subsidiaries (which term as used in this Offer to Purchase shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (includinginclude, without limitation, the insurance exchange managed by the Company)) or to compel or seeks to compel Parent or Purchaser to dispose of or hold separate all or any individual, corporation, firm, group portion of their own or other entitythe Company's business or assets (including without limitation the business or assets of their respective affiliates and subsidiaries) in Canada or elsewhere and (ii) no law, regulation imposes or policy shall have been proposed, enacted, promulgated or applied:
a. seeks to cease trade, enjoin, prohibit or impose material limitations or conditions any limitation on the ability of Parent, Purchaser or any affiliate of either of them to conduct its own business or own such assets as a result of the transactions contemplated by the Offer, Proposed Merger or any other subsequent business combination, (iii) makes or seeks to make the acceptance for payment, purchase by of, or the sale to the Offeror payment for, some or all of the Common Shares or any of them pursuant to the Offer or the right Proposed Merger illegal or results in a delay in, or restricts, the ability of Parent or Purchaser, or renders Parent or Purchaser unable, to accept for payment, purchase or pay for some or all of the Offeror Common Shares or to own consummate the Proposed Merger, (iv) imposes or seeks to impose limitations on the ability of Parent or Purchaser or any affiliate of either of them effectively to acquire or hold or to exercise full rights of ownership of the Common Shares, including, without limitation, the right to vote the Common Shares purchased by them on an equal basis with all other Common Shares on all matters properly presented to the shareholders of the Company, (v) in the sole judgment of Parent or Purchaser, might adversely affect the Company or any of themits subsidiaries or affiliates or Parent, or
b. which if Purchaser, or any of their respective affiliates or subsidiaries, (vi) in the sole judgment of Parent or Purchaser, might result in a diminution in the value of the Common Shares or the benefits expected to be derived by Parent or Purchaser as a result of the transactions contemplated by the Offer, (vii) in the sole judgment of Parent or Purchaser, imposes or seeks to impose any material condition to the Offer unacceptable to Parent or Purchaser or (viii) otherwise directly or indirectly relates to the Offer, the Proposed Merger or any other business combination with the Company;
(b) there shall be any action taken, or any statute, rule, regulation or order or injunction shall be sought, proposed, enacted, promulgated, entered, enforced or deemed or become applicable to the Offer, the Proposed Merger or other subsequent business combination between Purchaser or any affiliate of Purchaser and the Company or any affiliate of the Company or any other action shall have been taken, proposed or threatened, by any government, governmental authority or other regulatory or administrative agency or commission or court, domestic, foreign or supranational, other than the routine application of the waiting period provisions of the HSR Act to the Offer, that, in the sole judgment of Parent or Purchaser, might, directly or indirectly, result in any of the consequences referred to in clauses (i) through (vii) of 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, franchises, permits, permit applications, results of operations or prospects of the Company or any of its subsidiaries or affiliates which, in the sole judgment of Parent or Purchaser, is or may be materially adverse to the Company or any of its subsidiaries or affiliates, or Parent or Purchaser shall have become aware of any fact which, in the sole judgment of Parent or Purchaser, has 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 Common Shares to Parent or Purchaser;
(d) there shall have occurred (i) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory), (ii) any limitation (whether or not mandatory) by any governmental authority or agency on, or other event which, in the sole judgment of Parent or Purchaser, might affect the extension of credit by banks or other lending institutions, (iii) a commencement of a war, armed hostilities or other national or international crisis directly or indirectly involving the United States, (iv) any significant change in United States or any other currency exchange rates or any suspension of, or limitation on, the markets therefor (whether or not mandatory), (v) any significant adverse change in the market price of the Common Shares or in the securities or financial markets of the United States, or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, in the sole judgment of Parent or Purchaser, a material acceleration or worsening thereof;
(e) other than the redemption of the Rights at the Redemption Price, the Company or any subsidiary of the Company shall have, at any time after January 27, 1998 (i) issued, distributed, pledged, sold or authorized, proposed or announced the issuance of or sale, distribution or pledge to any person of (A) any shares of its capital stock (other than sales or issuances pursuant to options outstanding on January 27, 1998 in accordance with their terms as disclosed on such date or conversions of the Company Convertible Securities in accordance with their terms) of any class (including without limitation the Common Shares) or securities convertible into any such shares of capital stock, or any rights, warrants or options to acquire any such shares or convertible securities or any other securities of the Company, or (B) any other securities in respect of, in lieu of, or in substitution for, Common Shares outstanding on January 27, 1998, (ii) purchased, acquired or otherwise caused a reduction in the number of, or proposed or offered to purchase, acquire or otherwise reduce the number of, any outstanding Common Shares, or other securities, (iii) declared, paid or proposed to declare or pay any dividend or distribution on any Common Shares (other than the regular quarterly dividend on the Common Shares not in excess of the amount per share, and with record and payment dates, in accordance with recent practice) or on any Preferred Shares (other than the regular quarterly dividend on the Preferred Shares not in excess of the amount per share payable in accordance with the terms of the Preferred Shares) or on any other security or issued, authorized, recommended or proposed the issuance or payment of any other distribution in respect of the Common Shares or the Preferred Shares, whether payable in cash, securities or other property, (iv) altered or proposed to alter any material term of any outstanding security, (v) incurred any debt other than in the ordinary course of business and consistent with past practice or any debt containing burdensome covenants, (vi) issued, sold or authorized or announced or proposed the issuance of or sale to any person of any debt securities or any securities convertible into or exchangeable for debt securities or any rights, warrants or options entitling the holder thereof to purchase or otherwise acquire any debt securities or incurred or announced its intention to incur any debt other than in the ordinary course of business and consistent with past practice, (vii) split, combined or otherwise changed, or authorized or proposed the split, combination or other change of the Common Shares, the Preferred Shares or its capitalization, (viii) authorized, recommended, proposed or entered into or publicly announced its intent to enter into any merger, consolidation, liquidation, dissolution, business combination, acquisition or disposition of a material amount of assets or securities, any material change in its capitalization, any waiver, release or relinquishment of any material contract rights or comparable right of the Company or any of its subsidiaries or any agreement contemplating any of the foregoing or any comparable event not in the ordinary course of business, or taken any action to implement any such transaction previously authorized, recommended, proposed or publicly announced, (ix) transferred into escrow any amounts required to fund any existing benefit, employment or severance agreements with any of its employees or entered into any employment, severance or similar agreement, arrangement or plan with any of its employees other than in the ordinary course of business and consistent with past practice or entered into or amended any agreements, arrangements or plans so as to provide for increased benefits to the employees as a result of or in connection with the transactions contemplated by the Offer or any other change in control of the Company, (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 Parent or Purchaser shall have become aware of any such action which was consummatednot previously disclosed in publicly available filings, would materially and (xi) amended or proposed or authorized any amendment to the Company Articles or the Company By-Laws or similar organizational documents, (xii) authorized, recommended, proposed or entered into any other transaction that in the sole judgment of Parent or Purchaser could, individually or in the aggregate, adversely affect the Corporation value of the Common Shares to Parent or Purchaser or (xiii) agreed in writing or otherwise to take any of the foregoing actions or Parent or Purchaser shall have learned about any such action which has not previously been publicly disclosed by the Company and its Subsidiaries considered on a consolidated basis or also set forth in filings with the OfferorSEC;
(f) there the Company and Parent or Purchaser shall not exist any prohibition at law against the Offeror making have reached an agreement or understanding that the Offer be terminated or taking up and paying for 100% amended or Parent or Purchaser (or one of their respective affiliates) shall have entered into a definitive agreement or an agreement in principle to acquire the Company by merger or similar business combination, or purchase of Shares or assets of the Common Shares under the OfferCompany;
(g) there Parent or Purchaser shall become aware (i) that any material contractual right of the Company or any of its subsidiaries or affiliates shall be impaired or otherwise adversely affected or that any material amount of indebtedness of the Company or any of its subsidiaries shall become accelerated or otherwise become due prior to its stated due date, in either case with or without notice or the lapse of time or both, as a result of the transactions contemplated by the Offer or the Proposed Merger, 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 Common Shares in the hands of Purchaser or any other affiliate of Parent (including, but not limited to, any event of default that may ensue as a result of the consummation of the Offer, consummation of the Proposed Merger or any other business combination or the acquisition of control of the Company); or
(h) Parent or Purchaser shall not have occurred obtained any change after December 31waiver, 1998 (other than a change consent, extension, approval, action or non-action from any governmental authority or agency which in its judgment is necessary to consummate the Offer; which, in the market sole judgment of Parent or Purchaser in any such case, and regardless of the circumstances (including any action or inaction by Parent or Purchaser or any of their affiliates), giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payment. Parent and Purchaser have the right to rely on any condition set forth in the immediately preceding sentence being satisfied in determining whether to consummate the Offer; however, if Parent or Purchaser asserts the failure of any such condition without relying on the exercise of its reasonable judgment or some other objective criteria, Parent and Purchaser shall promptly disclose such assertion and the Expiration Date will be (and, if necessary, will be extended to be) at least five business days after the date of such disclosure. The foregoing conditions are for the sole benefit of Parent and Purchaser and may be asserted by Parent or Purchaser in their sole discretion regardless of the circumstances (including any action or omission by Parent or Purchaser) giving rise to any such conditions or price may be waived by Parent or Purchaser in their sole discretion in whole or in part at any time and from time to time. The failure by Parent or Purchaser at any time to exercise any of O.S.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. Any determination by the Parent or Purchaser concerning any condition or event described in this Section 14 shall be final and binding upon all parties.
Appears in 1 contract
Sources: Offer to Purchase (Cendant Corp)
Conditions of the Offer. The Offer shall is not be subject to any conditions financing condition. Notwithstanding any other than those substantially described as follows:
(a) not less than 66-2/3% provision of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under Merger Agreement or the Offer and subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act), Purchaser is not required to, and Parent is not required to cause Purchaser to, accept for payment or pay for any Shares validly tendered and not properly withdrawn pursuant to the Offer and may terminate or amend the Offer in accordance with the terms of the Merger Agreement, if any of the following conditions exist or have occurred and are continuing at the expiration scheduled Expiration Time of the Offer: • the Minimum Condition has not been satisfied; • any law, rule or regulation or any judgment or other order issued by any court, governmental authority or self-regulatory organization enjoining or otherwise prohibiting consummation of the Offer or the Merger is in effect; • the Regulatory Conditions have not been satisfied;
(i) the Commissioner representations and warranties of Competition (Carbon Black relating to the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 absence of certain changes or events are not true and correct in all respects as of the Act in respect date of the transaction (Merger Agreement and as of the "Transaction") which will result from Expiration Time with the Offersame effect as though made as of the Expiration Time; (ii) the Commissioner shall have advised representations and warranties of Carbon Black relating to certain capitalization matters are not true and correct in all respects as of the Offeror that he does not intend at date of the current time to apply Merger Agreement and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the Competition Tribunal for extent expressly made as of an order under section 92 earlier date, in which case as of the Act such earlier date), other than inaccuracies that are de minimis in respect of the Transactionamount; or (iii) the applicable waiting period under section 123 Table of Contents representations and warranties of Carbon Black relating to certain corporate matters, such as organization, standing and corporate power; Carbon Black’s authority and authorization of the Act shall have expired without Merger Agreement and the Commissioner having notified transactions contemplated thereby; certain recommendations of the Offeror that he intends to apply Carbon Black Board; the enforceability of the Merger Agreement; finders’ and brokers’ fees and expenses; and the inapplicability of certain state takeover laws to the Competition Tribunal for an order under section 92 Merger Agreement and the transactions contemplated thereby, are not true and correct in all material respects as of the Act in respect date of the TransactionMerger Agreement and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and no proceedings shall (iv) the other representations and warranties of Carbon Black set forth in the Merger Agreement are not true and correct as of the date of the Merger Agreement and as of the Expiration Time with the same effect as though made as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), other than where the failure to be true and correct would not, individually or in the aggregate, reasonably be expected to have been taken a Material Adverse Effect (the “Representations Condition”); • Carbon Black has not complied with or threatened performed in all material respects the obligations required to be complied with or performed by it prior to the Expiration Time under the merger provisions of Part VIII Merger Agreement and such failure to comply or under section 45 perform has not been cured by the Expiration Time (the “Obligations Condition”); • since the date of the Act Merger Agreement, there has been any effect, change, event or occurrence that, individually or in respect the aggregate, has had or would reasonably be expected to have a Material Adverse Effect (the “Material Adverse Effect Condition”); • the Merger Agreement has been terminated in accordance with its terms; or • Parent has not received a certificate signed on behalf of Carbon Black by an executive officer of Carbon Black, certifying that none of the Transaction;
(c) Representations Condition, the Obligations Condition or the Material Adverse Effect Condition is continuing as of the Expiration Time. For purposes of determining whether the Minimum Condition has been satisfied, Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not been received by the depositary prior to the Expiration Time are excluded. The conditions described above are in addition to, and not a limitation of, the rights and obligations of Purchaser and Parent to extend, terminate or modify the Offer in accordance with the terms of the Merger Agreement. The conditions described above are for the sole benefit of Parent and Purchaser and, other than the Minimum Condition, may be waived by Parent and Purchaser in whole or in part at any time and from time to time in their sole discretion, in each case subject to the terms and conditions of this agreement and to the extent permitted by applicable waiting periods under Law. The failure by Parent or Purchaser at any time to exercise any of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act foregoing rights shall not be deemed a waiver of 1976 any such right, the waiver of any such right with respect to particular facts and circumstances shall have expired or been earlier terminated;
(d) not be deemed a waiver with respect to any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges facts and securities regulatory authorities circumstances and under the Investment Canada Act,) each such right shall have been obtained or satisfied on terms satisfactory be deemed an ongoing right that may be asserted at any time and from time to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer;
(g) there shall not have occurred any change after December 31, 1998 (other than a change in the market conditions or price of O.S.time.
Appears in 1 contract
Sources: Offer to Purchase (Vmware, Inc.)
Conditions of the Offer. The Notwithstanding any other term of the Offer shall or the Merger Agreement, Purchaser will not be required to, and Nestlé will not be required to cause Purchaser to, accept for payment or, subject to any conditions other than those substantially described as follows:
applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for any Shares tendered pursuant to the Offer if: (a) there has not less than 66-2/3% of the outstanding Class A Multiple Voting Shares been validly tendered and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights validly withdrawn prior to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;Offer that number of Shares which, when added, without duplication, to the Shares owned by Nestlé and its wholly owned subsidiaries, would represent at least a majority of the Fully Diluted Shares as of the expiration of the Offer (the “Minimum Tender Condition”); (b) the waiting period applicable to the purchase of Shares pursuant to the Offer and the consummation of the Merger under the HSR Act (or any extension thereof) has neither expired nor terminated (the “HSR Condition”); or (c) any of the following conditions has occurred:
(i) there has been any Restraint in the Commissioner United States or Germany in effect restraining, enjoining, making illegal, or otherwise preventing or prohibiting the making of Competition the Offer or the consummation of the Merger or the Offer as of the expiration of the Offer (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; “Restraint Condition”);
(ii) the Commissioner shall approvals required under any competition, merger control, antitrust, foreign investment or similar law in Germany have advised the Offeror that he does not intend been obtained at the current time to apply or prior to the Competition Tribunal for an order under section 92 expiration of the Act in respect of Offer (the Transaction; or “German Regulatory Condition”);
(iii) the applicable waiting period under section 123 (A) any of the Act shall representations and warranties of Aimmune contained in the Merger Agreement (other than certain representations and warranties of Aimmune set forth in the first sentence of Section 4.01 (Organization, Standing and Corporate Power), Section 4.03(a) (Capital Structure), Section 4.04 (Authority; Recommendation), Section 4.07(ii) (Absence of Certain Changes), and Section 4.24 (Brokers and Other Advisors) of the Merger Agreement) are not true and correct except for any failure of such representations and warranties to be true and correct that would not, individually or in the aggregate, reasonably be expected to have expired without the Commissioner having notified the Offeror that he intends to apply a Material Adverse Effect (disregarding all references to the Competition Tribunal for an order under section 92 term “Material Adverse Effect” and other qualifications based on the word “material”); (B) certain representations and warranties of Aimmune set forth in Section 4.04 (Authority; Recommendation), Section 4.24 (Brokers and Other Advisors) and in the first sentence of Section 4.01 (Organization, Standing and Corporate Power) of the Act Merger Agreement are not true and correct in respect all material respects; (C) certain representations and warranties of Aimmune set forth in Section 4.03(a) (Capital Structure) of the TransactionMerger Agreement are not true and correct except for de minimis inaccuracies that would not, individually or in the aggregate, reasonably be expected to cause the aggregate amounts to be paid by Nestlé in connection with the Merger Agreement to increase by more than $2,000,000; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 (D) clause (ii) of the Act representation and warranty of Aimmune set forth in respect Section 4.07 (Absence of Certain Changes) of the TransactionMerger Agreement is not true and correct in all respects, in the case of each of clause (A), (B), (C) and (D), as of the date of the Merger Agreement and as of consummation of the Offer as though made at such time (except to the extent expressly made as of a specific date, in which case as of such specific date) (the foregoing collectively, the “Representations Condition”);
(civ) any applicable waiting periods Aimmune has failed to perform or comply in all material respects with its obligations required to be performed or complied with by it under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act Merger Agreement at or prior to the expiration of 1976 shall have expired or been earlier terminatedthe Offer (the “Covenant Condition”);
(dv) any other requisite regulatory approvals or requirements (including without limitation those since the date of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) Merger Agreement, there shall have been obtained or satisfied on terms satisfactory to occurred a Material Adverse Effect (as defined in the Offeror;Merger Agreement and described in more detail under “Special Factors—Section 6. Summary of the Merger Agreement—Representations and Warranties”) (the “MAE Condition”); Table of Contents
(ivi) no actAimmune has failed to deliver to Nestlé a certificate executed on behalf of Aimmune by the chief executive officer or the chief financial officer of Aimmune certifying that the Representations Condition, action, suit or proceeding shall the Covenant Condition and the MAE Condition have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, satisfied; or
b. which if (vii) the Offer was consummated, would materially and adversely affect the Corporation and Merger Agreement has been terminated in accordance with its Subsidiaries considered on a consolidated basis or the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer;
(g) there shall not have occurred any change after December 31, 1998 (other than a change in the market conditions or price of O.S.terms.
Appears in 1 contract
Sources: Offer to Purchase (Societe Des Produits Nestle S.A.)
Conditions of the Offer. The Notwithstanding any other term of the Offer or the Merger Agreement, Purchaser shall not be required to accept for payment or, subject to any conditions other than those substantially described as follows:
(a) not less than 66-2/3% applicable rules and regulations of the outstanding Class A Multiple Voting Commission, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser's obligation to pay for or return tendered Shares and not less than 66-2/3% promptly after the termination or withdrawal of the outstanding Class B Subordinate Voting Offer), to pay for any Shares tendered pursuant to the Offer, and may, subject to the provisions of the Merger Agreement, delay the acceptance for payment of or the payment for any tendered Shares, and (on a fully-diluted basis, assuming that all rights subject to acquire Common Shares were to be exercised in fullthe provisions of the Merger Agreement) are tendered under may terminate the Offer and not withdrawn accept for payment any tendered Shares, if at any time on or after the date of the Merger Agreement and before the expiration of the Offer, any of the following events or circumstances in clauses (1) through (8) shall have occurred and be continuing:
(1) immediately prior to the expiration of the Offer (as extended in accordance with the Merger Agreement), the number of Shares validly tendered and not properly withdrawn, together with any Shares owned by NRC or any wholly-owned direct or indirect subsidiary of NRC, constitutes less than 90% of the Fully Diluted Shares (however, notwithstanding the Tender and Support Agreement or any other provision of the Merger Agreement, NRC or Purchaser may, in their sole discretion, determine the Minimum Tender Condition satisfied if a majority, instead of 90%, of all Fully Diluted Shares are validly tendered in accordance with the terms of the Offer immediately prior to the scheduled Expiration Date and not properly withdrawn);
(i2) there shall be instituted or pending any action or proceeding by any person that seeks, directly or indirectly, to (a) make illegal, prohibit, materially delay or otherwise restrain the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 making of the Act in respect Offer, the consummation of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right Merger or the performance of the Offeror Merger Agreement, (b) impose material damages, costs or expenses on Op-Tech or NRC or their affiliates as a result of the transactions contemplated by the Merger Agreement, (c) restrain, prohibit or limit NRC's, Op-Tech's or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of NRC, Op-Tech or any such affiliate, or to own compel NRC, Op-Tech or any of their respective affiliates to dispose of, license or hold separate all or any material portion of the business or assets of NRC, Op-Tech or any such affiliate, or (d) impose limitations on the ability of NRC, Purchaser or any of NRC's other affiliates effectively to acquire, hold or exercise full rights of ownership of any Shares, including the Common right to vote the Shares acquired or owned by NRC, Purchaser or any of them, or
b. which if the Offer was consummated, would materially and adversely affect the Corporation and its Subsidiaries considered NRC's other affiliates on a consolidated basis or the Offerorall matters properly presented to Op-Tech's stockholders;
(f3) there any governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any order (preliminary or permanent) or law which has resulted in, or is reasonably likely to result in, any of the consequences referred to in clause (3) of this Section 13—"Conditions to the Offer";
(4) any of the representations and warranties of Op-Tech contained in the Merger Agreement (other than those with respect to Op-Tech's actions pursuant to the Offer, Op-Tech's organization and qualification to do business, Op-Tech's restated certificate of incorporation, as amended, and its bylaws, Op-Tech's subsidiary, Op-Tech's capitalization, Op-Tech's authority to enter into the Merger Agreement and Tender and Support Agreement and the Offer and the Merger, absence of conflicts, required filings or consents, Op-Tech's indebtedness, Op-Tech disclosure documentation, brokers' fees, and compliance with state anti-takeover laws) shall not exist any prohibition be true and correct as of the date of the Merger Agreement and at law against and as of the Offeror making acceptance for payment of Shares pursuant to the Offer (without regard to any qualifications therein as to materiality or taking up Op-Tech Material Adverse Effect), as though made at and paying as of that time (or, if made as of a specific date, at and as of that date), except for 100% those failures to be true and correct as would not reasonably be expected to have, individually or in the aggregate, a Op-Tech Material Adverse Effect; or any of the Common representations and warranties of Op-Tech with respect to Op-Tech's actions pursuant to the Offer, Op-Tech's organization and qualification to do business, Op-Tech's restated certificate of incorporation, as amended, and its bylaws, Op-Tech's subsidiary, Op-Tech's capitalization, Op-Tech's authority to enter into the Merger Agreement and Tender and Support Agreement and the Offer and the Merger, absence of conflicts, required filings or consents, Op-Tech's indebtedness, Op-Tech disclosure documentation, brokers' fees, and compliance with state anti-takeover laws, shall not be true and correct as of the date of the Merger Agreement and at and as of the acceptance for payment of Shares pursuant to the Offer (without regard to any qualifications therein as to materiality or Op-Tech Material Adverse Effect), as though made at and as of that time (or, if made as of a specific date, at and as of that date), in all material respects;
(5) Op-Tech shall have failed to perform in any material respect any covenant or obligation required to be performed or complied with by it under the Merger Agreement at or prior to the acceptance for payment of Shares pursuant to the Offer;
(g6) there shall have occurred a declaration of a banking moratorium by federal authorities or any suspension of payments in respect of banks in the United States;
(7) NRC and Purchaser shall not have received a certificate executed by Op-Tech's Chief Executive Officer and Chief Financial Officer confirming on behalf of Op-Tech that none of the events and circumstances set forth in clauses (4) and (5) of this Section 13—"Conditions to the Offer" shall have occurred and be continuing immediately prior to the acceptance for payment of Shares pursuant to the Offer;
(8) NRC and Purchaser shall not have received a copy from Op-Tech of fully executed and validly existing "payoff" letters or similar documents from each person to whom Op-Tech owes any change after December 31indebtedness, 1998 which "payoff" letter or document (other than a change a) sets forth the amount required to be paid to such Person to discharge all such indebtedness owed to such person and (b) provides that upon payment of the amount referenced in subclause (a), (i) all such indebtedness will have been repaid and neither Op-Tech, its subsidiary, NRC or Purchaser will have any outstanding obligations with respect to such indebtedness and (ii) any and all liens of such person against the Op-Tech or its subsidiary will be promptly released; or
(9) the Merger Agreement shall have been validly terminated in accordance its terms. The Merger Agreement provides that the foregoing conditions are for the sole benefit of NRC and Purchaser and may be waived only by NRC or Purchaser, and then, in whole or in part, at any time and from time to time prior to the Expiration Date in the market conditions sole discretion of NRC or price Purchaser (except for any condition that may only be waived with Op-Tech's consent). See Section 1—"Terms of O.S.the Offer" and Section 11—"Purpose of the Offer and Plans for Op-Tech; Transaction Documents—The Merger Agreement—The Offer." However, without the prior written consent of Op-Tech, Purchaser shall not accept for payment or pay for any Shares in the Offer if, as a result, Purchaser would acquire less than the number of Shares necessary to satisfy the Minimum Tender Condition.
Appears in 1 contract
Conditions of the Offer. The Notwithstanding any other provision of the Offer shall not be and subject to applicable law, the Offerors shall have the right to withdraw the Offer and not take up and pay for, or to extend the period of time during which the Offer is open for acceptance and postpone taking up and paying for, any conditions other than those substantially described RWCI Restricted Voting Shares deposited under the Offer if, at any time at or before the take up of Deposited Shares, any of the following events shall have occurred (as followsdetermined by the Offerors) which, in the Offerors' sole judgment in any such case, makes it inadvisable to proceed with the Offer or with the take up of Deposited Shares:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;
(i) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened threatened, commenced or taken by any Person before or by any domestic or foreign court arbitrator, court, tribunal, governmental agency, regulatory authority, administrative agency, commission or tribunal stock exchange, in Canada, the United States or governmental agency elsewhere, or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no a law, regulation regulation, rule, policy, directive or policy order shall have been proposed, enacted, promulgated issued, promulgated, amended or applied:, in the case of each of (i) or (ii):
a. (i) to cease trade, enjoin, prohibit prohibit, challenge or impose material limitations or conditions on the purchase by or the sale to the an Offeror of the Common RWCI Restricted Voting Shares or any of them pursuant to the Offer or the right of the an Offeror to own or exercise full rights of ownership of the Common RWCI Restricted Voting Shares or any the ability of them, the Offerors to complete a Compulsory Acquisition or a Subsequent Acquisition Transaction; or
b. which (ii) which, if RWCI Restricted Voting Shares are taken-up and paid for under the Offer was consummatedOffer, would materially and could in the Offerors' sole judgment adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or an Offeror or any of their respective subsidiaries or the Offerorability of the Offerors to complete a Compulsory Acquisition or a Subsequent Acquisition Transaction;
(fb) there shall not exist any prohibition at law against the an Offeror making the Offer or Offer, taking up and paying for 100% of the Common any Deposited Shares under the Offeror completing a Compulsory Acquisition or Subsequent Acquisition Transaction;
(gc) there shall not have occurred (i) any general suspension of trading in, or limitation on prices for, securities on any securities exchange or in the over-the-counter market in Canada or the United States, or (ii) any event, action, state, condition or major financial occurrence of national or international consequence which materially adversely affects or may materially adversely affect financial markets in Canada or the United States generally;
(d) there shall have occurred any tax change after December 31(including any proposal to amend the Tax Act or any announcement, 1998 (other than governmental or regulatory initiative, issue of an interpretation bulletin, condition, event or development involving a change prospective change) that, in the market sole judgment of the Offerors, has or may have an adverse effect on the Corporation, an Offeror or any of their respective subsidiaries, on any Compulsory Acquisition or Subsequent Acquisition Transaction or on a subsequent sale or disposition of assets of the Corporation or any of its subsidiaries;
(e) there shall have occurred any material adverse change or changes (or any development shall have occurred involving any prospective material adverse change or changes) in the business, assets, capital, liabilities, condition (financial or otherwise), operations, results of operations or prospects of the Corporation or its subsidiaries taken as a whole; and
(f) all necessary approvals and consents in respect of the Offer or the take up and payment for Deposited Shares from any government body, regulatory body or agency or any stock exchange on terms satisfactory to the Offerors have not been obtained or any waiting period with respect to such approvals and consents has not expired or been terminated. The foregoing conditions are for the exclusive benefit of the Offerors and may be asserted by the Offerors in their sole discretion regardless of the circumstances (including any action or price inaction by an Offeror) giving rise to any such conditions, or may be waived by the Offerors, in their sole discretion, in whole or in part at any time and from time to time, prior to the Expiry Time, without prejudice to any other rights which an Offeror may have. Each of O.S.the foregoing conditions is independent of and in addition to each other of such conditions and may be asserted irrespective of whether any other of such conditions may be asserted in connection with any particular event, occurrence or state of facts or otherwise. The failure by the Offerors at any time prior to the Expiry Time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted by the Offerors at any time and from time to time prior to the take up of Deposited Shares. Any determination by the Offerors concerning any event or other matter described in the foregoing conditions will be final and binding upon all parties. Any waiver of a condition or the withdrawal of the Offer shall be effective on the date on which notice of such waiver or withdrawal is delivered or otherwise communicated in writing to the Depositary at its principal office in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇. After giving any such notice, the Offerors will make a public announcement of such waiver or withdrawal, cause the Depositary, if required by law, as soon as practicable thereafter to notify Shareholders in the manner set forth in Section 11 of the Offer to Purchase, "Notices and Delivery", and provide or cause to be provided a copy of the aforementioned public announcement to the TSX and the NYSE. If the Offer is withdrawn, the Offerors shall not be obligated to take up or pay for any Deposited Shares, and the Depositary will return all certificates representing Deposited Shares, Letter of Acceptance and Transmittal and related documents to the parties by whom they were deposited at the Offerors' expense. See Section 11 of the Offer to Purchase, "Notices and Delivery".
Appears in 1 contract
Sources: Offer to Purchase (Rogers Wireless Communications Inc)
Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in the Merger Agreement, 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 properly withdrawn) pursuant to the Offer shall not is subject to the satisfaction of the conditions below (the “Offer Conditions”). Neither Parent nor Purchaser will 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 Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for any Shares tendered pursuant to the Offer if, at the then-scheduled expiration of the Offer, any of the following conditions other than those substantially described as followshave not been satisfied or waived in writing by Parent or Purchaser:
(a) the Minimum Condition has not less than 66-2/3% been satisfied;
(b) any waiting period (and any extension thereof) applicable to the consummation of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;
(i) the Commissioner of Competition (the "Commissioner") appointed Merger under the Competition HSR Act has not been terminated or has not expired, or any other clearance, approval or consent under any other applicable antitrust law of any governmental authority (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 and within any jurisdiction in which Parent or any of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does its affiliates operate their respective businesses or own any assets has not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transactionobtained;
(c) any applicable waiting periods under of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act following events, conditions, circumstances, state of 1976 shall have expired facts or been earlier terminated;
(d) any other requisite regulatory approvals developments exist or requirements (including without limitation those of stock exchanges has occurred and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;be continuing:
(i) no act, action, suit any judgment preventing the consummation of the Offer or proceeding shall have the Merger has been threatened or taken before or issued by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by of competent jurisdiction (and within any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) jurisdiction in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares which Parent or any of them pursuant its affiliates operate their respective businesses or own any assets) and remain in effect, or there is any law enacted or deemed applicable by any such governmental authority to the Offer or the right Merger that makes consummation of the Offeror to own Offer or exercise full rights the Merger illegal;
(ii) any Proceeding has been instituted, pending or threatened in writing by any governmental authority of ownership of the Common Shares competent jurisdiction (and within any jurisdiction in which Parent or any of themits affiliates operate their respective businesses or own any assets) seeking (1) a Non-Required Remedy (as defined below) or (2) to enjoin, or
b. which if make illegal or otherwise prohibit the consummation of the Offer was consummatedof the Merger (the conditions set forth in (b), would materially (c)(i) and adversely affect (c)(ii) above, the Corporation “Antitrust and its Subsidiaries considered on a consolidated basis or the OfferorJudgment/Illegality Conditions”);
(fiii) there shall not exist any prohibition at law against the Offeror making ArQule and Parent have agreed in writing that the Offer or taking up and paying for 100% of the Common Shares under Merger Agreement be terminated, or the OfferMerger Agreement has been terminated in accordance with its terms;
(g) there shall not have occurred any change after December 31, 1998 (other than a change in the market conditions or price of O.S.
Appears in 1 contract
Conditions of the Offer. The Offeror will have the right to withdraw the Offer shall and not be subject take up and pay for, or extend the period of time during which the Offer is open and postpone taking up and paying for, the Shares deposited under the Offer unless all of the following conditions are satisfied or the Offeror has waived them at or prior to any conditions other than those substantially described as followsthe relevant Expiry Time:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered there shall have been validly deposited under the Offer and not withdrawn as at the expiration Expiry Time of the Offer, such number of Shares which represents at least 66 2/3% of the issued and outstanding Shares calculated on a Diluted Basis, excluding any Shares directly or indirectly owned by the Offeror prior to the Expiry Time of the Offer;
(ib) the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; all requisite governmental or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory consents, approvals or requirements decisions (including including, without limitation limitation, those of any stock exchanges and or securities regulatory authorities and under consents from any governmental authority within the Investment Canada Act,People’s Republic of China) that in the Offeror’s judgment, acting reasonably, are necessary or desirable in connection with and required by law to complete the Offer shall have been obtained or satisfied on terms satisfactory to the Offeror, acting reasonably, and all waiting periods imposed by applicable Laws shall have expired or been terminated;
(c) the Offeror shall have determined, acting reasonably, that: (i) no act, action, suit suit, demand or proceeding shall have been threatened in writing or taken before or by any domestic Canadian or foreign court Government Authority or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada Canada, the United States or elsewhere whether or not having the force of Law; and (ii) no lawLaw, regulation or policy shall have been proposed, enacted, promulgated or applied; in either case:
a. A. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer Shares or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of themShares;
B. which, or
b. which if the Offer was consummated, would materially and reasonably be expected to lead to a Material Adverse Change or which would adversely affect the Corporation and ability of the Offeror to effect a Subsequent Acquisition Transaction;
C. which would prevent or materially delay the completion of the acquisition by the Offeror of the Shares pursuant to a Subsequent Acquisition Transaction; or
D. seeking to prohibit or limit the ownership or operation by the Offeror of any material portion of the business of assets of the Company or its Subsidiaries considered on to compel the Offeror or its Subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company or any of its Subsidiaries as a consolidated basis result of the Offer (or the Offerorany Subsequent Acquisition Transaction);
(fd) there shall not exist any prohibition at law Law against the Offeror making the Offer or taking up and paying for 100% of the Common any Shares deposited under the OfferOfferor;
(e) the Company shall have performed all obligations and covenant in all material respects set forth in the Support Agreement and the representations and warranties by the Company in the Support Agreement are true and accurate in all material respects;
(f) the Support Agreement shall not have been terminated, and no event shall have occurred that, with notice of lapse of time or both, gives the Offeror the right to terminate the Support Agreement;
(g) the Lock-Up Agreements shall not have been terminated and shall have been complied with, and no event shall have occurred that, with notice of lapse of time or both, gives the Offeror the right to terminate the Lock-Up Agreements;
(h) there shall not have occurred any change Material Adverse Change since the date of the Support Agreement;
(i) the Offeror shall not have become aware after December 31the date the Support Agreement becomes effective of any untrue statement of a material fact, 1998 (other than or an omission to state a change material fact that is required to be stated or that is necessary to make a statement not misleading in the market light of the circumstances in which it was made and at the date it was made (after giving effect to all subsequent filings in relation to all matters covered in earlier filings), in any Company Report filed by or on behalf of the Company with any regulatory authority in Canada or elsewhere, which the Offeror shall have determined in its reasonable judgment constitutes or results in a Material Adverse Change with respect to the Company; and
(j) the Board of Directors shall not have changed, modified or withdrawn any recommendation made by it that the Shareholders accept the Offer or issued a recommendation or communication that has substantially the same effect. The foregoing conditions shall be for the exclusive benefit of the Offeror, and may be asserted by the Offeror, in its sole discretion, at any time. The Offeror may waive any of the foregoing conditions in whole or price in part at any time and from time to time, both before and after the relevant Expiry Time, without prejudice to any other rights which the Offeror may have. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Shareholder’s Owned Shares: Name of O.S.Shareholder 10,000 Common Shares
Appears in 1 contract
Sources: Lock Up Agreement (Peru Copper Inc.)
Conditions of the Offer. The Offeror shall have the right to withdraw the Offer shall and not be subject take up and pay for, or extend the period of time during which the Offer is open, and postpone the taking up and paying for, any Shares deposited thereunder if any of the following conditions has not been satisfied or waived by the Offeror at or prior to any conditions other than those substantially described as followsthe Effective Time:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered there shall have been validly deposited under the Offer and not withdrawn at the expiration least (i) 662/3% of the Offeroutstanding Common Shares and (ii) 50.01% of the outstanding Common Shares other than these Common Shares held by persons whose Common Shares would not be included as part of the "minority" in connection with any Subsequent Acquisition Transaction;
(b) all outstanding options to purchase Common Shares, rights to receive or acquire Common Shares (including under the terms of any (i) balance of purchase price, (ii) earn-out payments, or (iii) guarantee of market price for certain Common Shares pending release from escrow) and other securities of the Commissioner Corporation convertible into Common Shares shall have been exercised in full by the beneficiaries or holders thereof, converted, cancelled or otherwise dealt within a manner satisfactory to the Offeror, to its entire discretion;
(c) the waiting period pursuant to Section 123 of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued expired or been earlier terminated and the Offeror shall have received an advance ruling certificate under section Section 102 of the Competition Act in respect of the transaction (the "Transaction") which will result or a no-action letter from the Offer; (ii) Commissioner of Competition or his authorized representative indicating that the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for make an order application under section Section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the TransactionAct;
(cd) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇ ▇▇▇▇▇▇ Antitrust Improvements Act of 1976 (United States) shall have expired or been earlier terminated;
(e) the Vendor shall not have sold or agreed or undertaken to sell the Vendor Shares it holds, directly or indirectly, to any party other than the Offeror, as contemplated under the terms of the Pre-Notification Agreement;
(f) the Offeror shall have determined in its sole judgment that all material necessary or desirable regulatory approvals (including, without limitation, those of any stock exchange or other regulatory authorities), other than those listed in paragraphs (c) and (d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall above, will have been obtained or satisfied concluded on terms satisfactory to the OfferorOfferor in its sole judgment and any applicable governmental or regulatory waiting periods shall have expired or been terminated;
(g) the Offeror shall have determined in its sole judgment, that (i) no act, action, suit or proceeding shall have been threatened to be taken or taken before or by any domestic or foreign arbitrator, court or tribunal or governmental agency or other regulatory authority or administrative agency or commission or by any elected or appointed public official or private person (including, without limitation, any individual, corporationcompany, firm, group or other entity) in Canada or elsewhere elsewhere, whether or not having the force of law, and (ii) no law, regulation regulation, rule or policy shall have been proposed, enacted, promulgated or applied, in the case of either (i) or (ii) above:
a. (A) to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of any of the Common Shares or any of them pursuant to the Offer or the right rights of the Offeror to own or exercise full rights of ownership of all of the Common Shares or any the ability of them, the Offeror to acquire all of the Shares pursuant to a Compulsory Acquisition or Subsequent Acquisition Transaction; or
b. which (B) which, if the Offer was consummated, would could materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offerorbasis;
(fh) the Offeror shall have determined in its sole judgment that there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares deposited under the OfferOffer or completing a Compulsory Acquisition or a Subsequent Acquisition Transaction;
(gi) from and after the date hereof, there shall not have occurred or arisen any event, action, state, condition or major financial occurrence of national or international consequence or any law, regulation, action, governmental regulation, inquiry or other occurrence of any nature whatsoever which materially adversely effects, or may materially adversely or seriously effect, the financial markets in Canada or the United States generally, or the business or prospects of the Corporation and its Subsidiaries (on a consolidated basis);
(j) there shall not have occurred (or, if there shall have previously occurred, there shall not have been disclosed, generally or to the Offeror in writing, prior to the commencement of the Offer) any change after December 31(or any condition, 1998 event or development involving a prospective change) in the business, operations, assets, capitalization, financial condition, prospects, licences, permits, rights, privileges or liabilities, whether contractual or otherwise, of the Corporation or any of its Subsidiaries considered on a consolidated basis which, in the sole judgment of the Offeror, is material and adverse or may reasonably be considered to be material and adverse to a purchaser of the Shares;
(k) no representation or warranty of the Vendor in the Lock-Up Agreement shall be, as of the date on which the Offeror takes up Shares deposited under the Offer, untrue or incorrect in any material respect and all of its covenants and obligations set out in the Lock-Up Agreement shall have been complied with on or before such date;
(l) the Offeror shall have determined in its sole judgment that neither the Corporation nor its board of directors (or any committees thereto or any of its affiliates or associates) has taken or proposes to take any action, or disclosed or proposes to disclose any previously undisclosed action taken by them, and no other party shall have taken or proposed to take any action, which may be considered to be a defensive tactic in response to the Offer or which may be materially adverse to the business of the Corporation or its Subsidiaries or the value of Shares to the Offeror or which makes it inadvisable for the Offeror to proceed with the Offer or the taking up and paying for Shares under the Offer, including, without limiting the generality of the foregoing, any action with respect to any agreement, proposal, offer or understanding relating to any material sale, disposition or other dealing with any of the assets or contracts of the Corporation or any of its Subsidiaries, any issue of shares, options or other securities of the Corporation to any person, any material acquisition from a third party of assets or securities by the Corporation or any of its Subsidiaries, or any take-over bid (other than the Offer), amalgamation, statutory arrangement, capital reorganization, merger, business combination, or similar transaction involving the Corporation or any of its Subsidiaries or any material expenditure or investment by the Corporation or any of its Subsidiaries;
(m) the Offeror shall not have become aware of any untrue statement of a change material fact, or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made and at the date it was made (after giving effect to all subsequent filings in relation to all matters covered in earlier filings), in any document filed by or on behalf of the Corporation with any of the Canadian or American securities authorities, or of any previously undisclosed information relating to the Corporation which makes it inadvisable for the Offeror to complete the Offer;
(n) the Offeror shall have been provided with, or shall have been given access to, in a timely manner, all non-public information relating to the Corporation as may be given, provided or made available by the Corporation:
(i) at any time after the announcement of the Offer, to any other potential acquiror of all or a significant portion of the Shares or of a significant portion of the assets of the Corporation or any of its Subsidiaries, associates or affiliates, or to any person considering (or seeking such information in order to consider) any merger, amalgamation, statutory arrangement or similar business combination with the Corporation or any of its Subsidiaries, associates or affiliates; or
(ii) at any time after June 30, 2002, to any person who, after the announcement of the Offer makes a take-over bid for the Shares or enters into an agreement with the Corporation relating to the acquisition of a significant portion of the assets of the Corporation or any of its Subsidiaries, associates or affiliates or a merger, amalgamation, statutory arrangement or similar business combination with the Corporation or any of its Subsidiaries, associates or affiliates; on substantially the same terms and conditions as may be imposed on such other potential acquiror or person, provided that no such term or condition shall be imposed on the Offeror that would be inconsistent with the Offer or would render the Offeror unable to complete the acquisition of the Shares pursuant to the terms of the Offer as the same may be amended or waived in the market Offeror's sole discretion;
(o) the Offeror shall have determined in its sole judgment that no material right, franchise or licence of the Corporation or of any of its Subsidiaries has been impaired (or threatened to be impaired) or otherwise adversely affected (or threatened to be adversely affected), whether as a result of the making of the Offer, the taking up and paying for Shares deposited under the Offer or otherwise, and no other change or event has occurred which might make it inadvisable for the Offeror to proceed with the Offer or with taking up and paying for Shares deposited under the Offer; and
(p) the Offeror shall have determined, in its sole judgment, that no covenant, term or condition exists in any instrument or agreement to which the Corporation or any of its Subsidiaries is a party or to which they or any of their assets are subject (including, but not limited to, any covenant, term or condition relating to the termination by the Corporation of existing agreements) which might make it inadvisable for the Offeror to proceed with the Offer or to acquire Shares deposited under the Offer, and the Offeror shall be satisfied that it has been provided with all information (including non-public information) material to such determination. The foregoing conditions are for the exclusive benefit of the Offeror. The Offeror may assert any of the foregoing conditions at any time, regardless of the circumstances giving rise to such assertion (including any action or price inaction by the Offeror). The Offeror may waive any of O.S.the foregoing conditions in whole or in part at any time and from time to time without prejudice to any other rights which the Offeror may have.
Appears in 1 contract
Sources: Lock Up Agreement (Cgi Group Inc)
Conditions of the Offer. For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in the Merger Agreement, 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 shall 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 conditions other than those substantially described as follows:
(a) not less than 66-2/3% applicable rules and regulations of the outstanding Class A Multiple Voting SEC, including Rule 14e-l(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares and not less than 66-2/3% promptly after the termination or withdrawal of the outstanding Class B Subordinate Voting Offer) (the “Payment Rules”), to pay for any Shares tendered pursuant to the Offer and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the SEC, the payment for, any tendered Shares, and (on a fully-diluted basis, assuming that all rights subject to acquire Common Shares were to be exercised in fullthe provisions of the Merger Agreement) are tendered under may terminate the Offer and not withdrawn 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 expiration Minimum Tender Condition has not been satisfied, any waiting period (and 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”) or any of the following additional conditions shall not be satisfied or waived by one minute after 11:59 p.m., New York City time, on the Expiration Date: • there shall not be pending any Action by any Governmental Authority of competent jurisdiction that seeks, directly or indirectly, to make illegal, prohibit, materially delay or otherwise restrain the making of the Offer;
, the consummation of the Offer or the Merger or the performance of the Merger Agreement; • no Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Judgment (ipreliminary or permanent) or Law that has resulted in, or is reasonably likely to result in any of the Commissioner consequences referred to in the bullet point above; • each of Competition CoLucid’s representations and warranties set forth in Section 3.1(a), 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 corporate organization, corporate power and authority to enter into the "Commissioner"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 since December 31, 2015) appointed shall be true and correct in 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); • the representations and warranties set forth in Section 3.2 of the Merger Agreement (which relate to capitalization) shall be true and correct in 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 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 first sentence of Section 3.6 of the Merger Agreement, which are described above) shall be true and correct in 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, a Company Material Adverse 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 under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend Merger Agreement at the current time to apply or prior to the Competition Tribunal for an order under section 92 of the Act in respect of the TransactionAcceptance Time; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; • Lilly and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired received a certificate executed by CoLucid’s Chief Executive Officer or been earlier terminated;
Chief Financial Officer confirming on behalf of CoLucid that the conditions set forth in clauses (de) any other requisite regulatory approvals or requirements and (including without limitation those f) of stock exchanges and securities regulatory authorities and under Annex A to the Investment Canada Act,) Merger Agreement shall have been obtained or satisfied on terms satisfactory to duly satisfied; • the Offeror;
(i) no act, action, suit or proceeding Merger Agreement shall not have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) validly terminated in Canada or elsewhere accordance with its terms; and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer;
(g) • there shall not have occurred any change after December 31Company Material Adverse Effect. The foregoing conditions are for the sole benefit of Lilly and Purchaser and (except for the Minimum Tender Condition) may be waived by ▇▇▇▇▇ and Purchaser, 1998 (other than a change in whole or in part at any time from time to time, in the market conditions sole discretion of ▇▇▇▇▇ and Purchaser. The failure by ▇▇▇▇▇, Purchaser or price any other affiliate of O.S.Lilly at any time to exercise any of the foregoing rights 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 will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Offer to Purchase (Lilly Eli & Co)
Conditions of the Offer. The Offer shall Capitalized terms used in this Section 13—"Conditions of the Offer," but not defined herein have the respective meanings given to them in the Merger Agreement. Notwithstanding any other provision of the Offer, the Offeror will not be required to accept for payment or (subject to any conditions other than those substantially described as followsapplicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act) pay for, and may delay the acceptance for payment of, or (subject to any rules and regulations) the payment for, any tendered Shares, and, to the extent permitted by the Merger Agreement, may terminate the Offer and not accept for payment any tendered Shares if:
(a) the Minimum Condition has not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offerbeen satisfied;
(ib) Smart & Final's representations and warranties (subject to de minimis, materiality and Material Adverse Effect qualifiers) contained in the Commissioner Merger Agreement including, without limitation, a representation as to the absence, since the date of Competition the Merger Agreement, of any event, occurrence, development, violation, inaccuracy, circumstance or other matter that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (as defined in the "Commissioner") appointed under the Competition Act (CanadaMerger Agreement) (the "ActRepresentations Conditions") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction);
(c) any applicable waiting periods Smart & Final has not complied with or performed in all material respects its obligations due prior to the Expiration Date under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired Merger Agreement at or prior to the Offer Acceptance Time and such failure to comply or perform has not been earlier terminatedcured by the Expiration Date (the "Covenants Condition");
(d) the waiting period (and any other requisite regulatory approvals or requirements (including without limitation those extension of stock exchanges the waiting period) applicable to the Offer and securities regulatory authorities and the Merger under the Investment Canada HSR Act,) , as amended, has not expired or been terminated (the "HSR Clearance"), and approval from the Mexican Federal Economic Competition Commission or the Mexican Federal Institute of Telecommunications shall have been obtained or satisfied on terms satisfactory deemed to have been obtained pursuant to Article 90 (V) of the OfferorMexican Federal Economic Competition Law (the "Mexican Antitrust Approval," and together with the HSR Clearance, the "Regulatory Condition");
(ie) no act, action, suit the Offeror and Parent have not received a certificate executed on behalf of Smart & Final by its Chief Executive Officer or proceeding shall Chief Financial Officer confirming that the Representations Conditions and the Covenants Condition have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person duly satisfied (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or the right of the Offeror to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror"Officer Certificate Condition");
(f) there shall not exist the absence of any prohibition at law against temporary restraining order, preliminary or permanent injunction or other order or action taken or legal requirement by any governmental body which prevents the Offeror making consummation of the Offer or taking up and paying for 100% of the Common Shares under Merger (the Offer"Restraint Condition");
(g) there the Merger Agreement has been terminated in accordance with its terms (the "Termination Condition"); or
(h) the Marketing Period has not been completed (the "Marketing Period Condition"). The foregoing conditions are for the sole benefit of Parent and the Offeror and except for the Minimum Condition, the Termination Condition, the Regulatory Condition (to the extent such waiver would reasonably be expected to adversely affect Smart & Final's stockholders, directors or officers or require rescission of the transactions contemplated hereby under applicable Antitrust Laws) and the Restraint Condition (to the extent such order or injunction applies against Smart & Final, its subsidiaries or their respective directors or officers) may be waived by Parent and the Offeror, in whole or in part at any time and from time to time, in the sole discretion of Parent and the Offeror. The failure by Parent or the Offeror at any time to exercise any of the foregoing rights shall not have occurred be deemed a waiver of any change after December 31such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. All of the above conditions, 1998 (other than a change in those conditions dependent upon the market conditions receipt of government approvals necessary to consummate the Offer, must be satisfied or price of O.S.waived at or prior to the Expiration Date.
Appears in 1 contract
Conditions of the Offer. (i) The obligation of Merger Sub to (and of Parent to cause Merger Sub to) accept for payment, and pay for, any and all Shares validly tendered (and not validly withdrawn) pursuant to the Offer shall not be subject to the terms and conditions of this Agreement, including the satisfaction (or to the extent waivable, the waiver by Parent or Merger Sub) of the conditions set forth in ANNEX I (as they may be amended from time to time in accordance with this Agreement, collectively, the “Offer Conditions”) and not to any conditions other than those substantially described as follows:conditions.
(aii) not less than 66-2/3% of Merger Sub expressly reserves the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basisright, assuming that all rights at any time, to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;
(i) increase the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere Offer Price and (ii) no law, regulation waive any Offer Condition or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale make any other changes to the Offeror terms and conditions of the Common Shares Offer not inconsistent with the terms of this Agreement; provided, however, that without the prior written consent of the Company: (A) the Minimum Condition may not be amended or any waived, (B) Merger Sub shall not decrease the Offer Price and (C) no change may be made to the Offer that (1) changes the form of them consideration to be delivered by Merger Sub pursuant to the Offer Offer, (2) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (3) imposes conditions or the right of the Offeror requirements to own or exercise full rights of ownership of the Common Shares or any of them, or
b. which if the Offer was consummatedin addition to the Offer Conditions, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or the Offeror;
(f4) there shall not exist any prohibition at law against the Offeror making except as provided in Section 2.1(d), terminates the Offer or taking up and paying for 100% accelerates, extends or otherwise changes the Expiration Date of the Common Offer (5) otherwise amends or modifies any of the other terms of the Offer in a manner that adversely affects any holder of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions, or (6) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be withdrawn prior to the Expiration Date (or any rescheduled Expiration Date) of the Offer;
(g) there shall not have occurred any change after December 31, 1998 (other than a change unless this Agreement is terminated in the market conditions or price of O.S.accordance with Section 8.1.
Appears in 1 contract
Conditions of the Offer. The Offer Notwithstanding any other term or provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any conditions applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act, to pay for any Shares not theretofore accepted for payment or paid for unless the Minimum Tender Condition has been fulfilled, namely that there shall have been tendered and not withdrawn prior to the expiration of the Offer not less than that number of Shares that would represent 65 percent of Criticare's outstanding Shares, assuming the exercise of all outstanding Criticare stock options. Furthermore, notwithstanding any other than those substantially described term or provision of the Offer, Purchaser shall not be required to accept for payment or, subject as followsaforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate or amend the Offer if, at any time on or after the date hereof, and prior to the acceptance of such Shares for payment or the payment therefor, any of the following events or facts shall have occurred:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares there shall have occurred and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under the Offer and not withdrawn at the expiration of the Offer;
continuing (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the Commissioner over-the-counter market in the United States, (ii) a declaration of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 a banking moratorium or any suspension of the Act payments in respect of banks in the transaction United States (the "Transaction") which will result from the Offer; (ii) the Commissioner shall have advised the Offeror that he does whether or not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; mandatory), or (iii) any limitation (whether or not mandatory) imposed by any government, governmental agency or authority on the applicable waiting period under section 123 extension of credit by banks or other lending institutions in the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the TransactionUnited States; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the Transaction;or
(cb) there shall be instituted or pending any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit action or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other governmental, regulatory authority or administrative agency or commission by any elected that has, in the good faith judgment of Parent, a reasonable probability of success and that (i) challenges the acquisition in whole or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror part of the Common Shares Shares, seeks to restrain or any prohibit the making or consummation of them pursuant to the Offer or the right Merger or seeks to obtain any material damages, (ii) prohibits or makes illegal the purchase of, or payment for, some or all of the Offeror Shares, (iii) results in a material delay in or materially restricts the ability of Purchaser, or renders the Purchaser unable, to own accept for payment or pay for some or all of the Shares or to consummate the Merger, or (iv) imposes material limitations on the ability of Purchaser effectively to acquire or to hold or to exercise full rights of ownership of the Common Shares, including, without limitation, the right to vote the Shares purchased by Purchaser on all matters properly presented to the stockholders of Criticare; or
(c) any statute, rule, regulation, referendum, interpretation or order shall be enacted, qualified, enforced, promulgated or deemed applicable to (i) Opto Circuits or any of themits Subsidiaries (including Criticare or any of its Subsidiaries) or (ii) the Offer or the Merger, which, in the reasonable judgment of Opto Circuits, would directly or indirectly result in any of the consequences referred to in clauses (i) through (iv) of paragraph (b) above; or
b. which if (d) the Merger Agreement shall have been terminated in accordance with its terms or Opto Circuits and Criticare shall have agreed that Purchaser shall amend or terminate the Offer was consummatedor postpone the acceptance for payment of Shares pursuant thereto; or
(e) any of the representations and warranties of Criticare set forth in the Merger Agreement (i) that are qualified as to materiality or a Material Adverse Effect on Criticare shall not be true and correct and (ii) that are not so qualified shall not be true and correct in any material respect, in each case as if such representations and warranties were made at the time of such determination (other than to the extent such representations and warranties are made as of a specified date, in which case, such representations and warranties shall not be so true and correct as of such date), except (in the case of both (i) and (ii) above) for any failure to be so true and correct which, individually or in the aggregate, does not and would materially and adversely affect the Corporation and its Subsidiaries considered not reasonably be expected to have a Material Adverse Effect on a consolidated basis or the Offeror;Criticare; or
(f) there Criticare shall not exist have failed to perform or comply with in any prohibition at law against the Offeror making the Offer or taking up and paying for 100% material respect any of the Common Shares agreements or covenants of Criticare to be performed or complied with by it under the Offer;Merger Agreement; or
(g) certain stockholder tender agreements that each of the directors of Criticare were requested to execute concurrently with the execution of the Merger Agreement to tender all of the Shares owned by such director in the Offer and to vote against certain transactions in favor of Opto Circuits and Purchaser are not executed as of the consummation of the Offer; or
(h) there shall not have occurred any change after December 31event or condition that has had a Material Adverse Effect on Criticare; which in the reasonable good faith judgment of Opto Circuits with respect to each and every matter referred to above and regardless of the circumstance (including any action or inaction by Opto Circuits or Purchaser) giving rise to any such condition, 1998 makes it inadvisable to proceed with the Offer, the acceptance for payment or payment for the Shares in the Offer, or the Merger. The foregoing conditions (other than a change in the market Minimum Tender Condition) are for the benefit of Opto Circuits and Purchaser only and may be asserted regardless of the circumstances giving rise to any such conditions (including any action or price of O.S.inaction by Opto Circuits or Purchaser).
Appears in 1 contract
Conditions of the Offer. The Offer shall not be subject to any the following terms and conditions other than those substantially described as followswhich shall have been satisfied or waived to the Acquiror’s satisfaction:
(a) not less than 66-2/3% of the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered there shall have been validly deposited under the Offer and not withdrawn a number of Miranda Shares which constitute, together with any Miranda Shares directly or indirectly owned by the Acquiror or its affiliates, at the expiration least 66 2/3% of the Offeroutstanding Miranda Shares (on a fully diluted basis, excluding any Rights which may be issued pursuant to the Shareholder Rights Plan);
(b) the Miranda Board shall have (i) deferred the Commissioner Separation Time of Competition (the "Commissioner") appointed Rights under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction") which will result from the Offer; Shareholder Rights Plan and (ii) irrevocably waived or suspended the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 operation of the Act in respect of Shareholder Rights Plan or otherwise rendered the Transaction; or (iii) Shareholder Rights Plan inoperative against the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; Offer, any Compulsory Acquisition and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 of the Act in respect of the any Subsequent Acquisition Transaction;
(c) any applicable waiting periods under the ▇▇▇▇The Lock-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 Up Agreements shall not have expired been breached or been earlier terminatedterminated in accordance with their terms;
(d) any other requisite All Options, SARs, Miranda DSUs and Miranda RSUs shall have been exercised or cancelled in accordance with the terms of the respective plans;
(e) all government or regulatory approvals approvals, waiting or requirements suspensory periods, waivers, permits, consents, reviews, orders, rulings, decisions, and exemptions (including including, without limitation limitation, those of any stock exchanges and or other securities or regulatory authorities and under the Investment Canada Act,Antitrust Approvals) which in the Acquiror’s reasonable judgement are necessary to obtain in connection with the Offer, any Compulsory Acquisition or any Subsequent Acquisition Transaction shall have been obtained or satisfied concluded on terms and conditions satisfactory to the OfferorAcquiror, acting reasonably;
(if) there shall not be in force any final and non-appealable judgement, injunction, order or decree, there shall not have been passed any Law prohibiting, preventing, restraining or enjoining the consummation of the transactions contemplated by the Agreement;
(g) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission or by any elected or appointed public official or private person (including, without limitation, any individual, corporation, firm, group or other entity) in Canada or elsewhere elsewhere, whether or not having the force of law, and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated promulgated, amended, applied or appliedotherwise come into effect or existence, in either case:
a. (i) to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror Acquiror of the Common Miranda Shares or any of them pursuant to the Offer or the right of the Offeror Acquiror to own or exercise full rights of ownership of the Common Shares Miranda Shares, or the consummation of any of themCompulsory Acquisition Transaction or Subsequent Acquisition Transaction;
(ii) which, or
b. which if the Offer was (or the consummation of any Compulsory Acquisition Transaction or Subsequent Acquisition Transaction) were consummated, would materially and adversely affect reasonably be expected to have a Material Adverse Effect on Miranda; or
(iii) which would prevent the Corporation and ability of the Acquiror or its Subsidiaries considered on affiliates to effect a consolidated basis or the OfferorSubsequent Acquisition Transaction;
(fh) there shall not exist any prohibition at law against the Offeror Acquiror making the Offer or Offer, taking up and paying for 100% of the Common Miranda Shares deposited under the OfferOffer or completing a Compulsory Acquisition or Subsequent Acquisition Transaction;
(gi) there the Support Agreement shall not have occurred been terminated in accordance with its terms;
(j) all representations and warranties of Miranda in Schedule C (in each case without giving effect to any change after December 31materiality qualifications or limitations therein) shall be true and correct as at the Expiry Time as if made at and as of such time (except to the extent such representations and warranties speak solely as of an earlier date, 1998 (other than a change in which event such representations and warranties shall be true and correct to such extent as of such earlier date), except for any breach or failure of such representations and warranties to be true and correct that would not, individually or in the market aggregate, constitute a Material Adverse Effect on Miranda;
(k) Miranda shall have observed and performed its covenants and obligations set out in the Support Agreement in all material respects to the extent that such covenants were to have been observed or performed by Miranda at or prior to the Expiry Time;
(l) A Material Adverse Effect shall not exist or have occurred with respect to Miranda; and
(m) the Acquiror shall not have become aware of any untrue statement of material fact, or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made and at the date it was made (after giving effect to all subsequent filings prior to the date of the Offer in relation to all matters covered in earlier filings), in any document filed by or on behalf of Miranda with any securities commission or similar securities regulatory authority in any of the provinces of Canada, including without limitation any annual information form, financial statement, material change report or management proxy circular or in any document so filed or released by Miranda to the public, which the Acquiror shall have determined has or would reasonably be expected to have a Material Adverse Effect on Miranda.
1. Competition Act Approval means:
(a) the issuance of an advance ruling certificate by the Commissioner pursuant to section 102(1) of the Competition Act with respect to the transactions contemplated by this Agreement, and such certificate has not been rescinded or amended; or
(b) the Acquiror and Miranda shall have given the notice required under section 114 of the Competition Act with respect to the transactions contemplated by this Agreement and the applicable waiting period under section 123 of the Competition Act shall have expired or shall have been waived in accordance with the Competition Act; or
(c) the obligation to give the requisite notice shall have been waived pursuant to subsection 113(c) of the Competition Act, and, in the case of (b) or (c) above, the Acquiror and Miranda shall have been advised in writing by the Commissioner that such person does not, at that time, intend to make an application under section 92 of the Competition Act with respect to the transactions contemplated by this Agreement, and the form of and any material terms and conditions attached to any such advice would not adversely affect the Acquiror in the discretion of the Acquiror, acting reasonably, and such advice has not been rescinded or price of O.S.amended.
Appears in 1 contract
Sources: Support Agreement (Belden Inc.)
Conditions of the Offer. The Offer shall not be subject to any conditions other than those substantially described as followsthe following:
(a) there shall have been validly deposited and not withdrawn under the Offer as at the expiry time of the Offer such number of SV Shares (calculated on a fully diluted basis) which represents not less than 66-2/390% of the SV Shares outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-fully diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered under as at the expiry time of the Offer and not withdrawn at other than SV Shares held on the expiration date of the OfferOffer by or on behalf of the Offeror, its affiliates and associates (the "minimum share tender condition");
(ib) all government or regulatory consents or approvals (including in Canada, the Commissioner of Competition (the "Commissioner") appointed under the Competition Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of the Act in respect of the transaction (the "Transaction"United States or elsewhere) which will result from the Offer; (ii) the Commissioner shall have advised Offeror, in its sole judgment, views as being necessary to enable the Offeror that he does not intend at to acquire the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings Company shall have been taken received by the Offeror on terms and conditions satisfactory to the Offeror including the expiration or threatened under the merger provisions early termination of Part VIII or under section 45 of the Act in respect of the Transaction;
(c) any applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 INVESTMENT CANADA ACT (Canada) and the HSR Act;
(c) the Offeror shall have expired obtained such orders or been earlier terminatedexemptive relief from the appropriate governmental or regulatory authorities in each applicable jurisdiction as are necessary in connection with completing the Offer and the transactions contemplated thereby;
(d) there shall not exist any other requisite regulatory approvals prohibition at law against the Offeror making the Offer or requirements (including without limitation those of stock exchanges taking up and securities regulatory authorities and paying for SV Shares deposited under the Investment Canada Act,Offer, or completing any subsequent compulsory acquisition or going private transaction;
(e) as of the date of this Agreement, each of the representations and warranties of the Company set forth in this Agreement which are qualified by materiality shall be true and correct in all respects, each of the other representations and warranties of the Company set forth in the Offer Agreement shall be true and correct in all material respects, and, with respect to breaches of representation or warranty resulting from events occurring between the date of this Agreement and the Expiry Time, such breach(es) shall not, either individually or in the aggregate, have been obtained a Material Adverse Effect, and the Company shall have performed in all material respects any covenant or satisfied on terms satisfactory complied in all material respects with any agreement to the Offerorbe performed by it under this Agreement;
(f) the Offeror shall have determined in its sole judgment that (i) no act, action, action suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission commission, or by any elected or appointed public official Governmental Entity or private person (including, without limitation, any individual, corporation, firm, group or other entity) Person in Canada or elsewhere elsewhere, whether or not having the force of law, and (ii) no law, regulation regulation, policy, directive or policy order, whether or not having the force of law, shall have been proposed, enacted, promulgated or applied:, in the case of either (i) or (ii):
a. (A) to cease trade, enjoin, prohibit or impose material limitations or conditions on the purchase by or the sale to the Offeror of the Common Shares or any of them pursuant to the Offer or SV Shares, the right of the Offeror to own SV Shares or exercise full rights of ownership of the Common SV Shares or any the right of themthe Offeror to complete a compulsory acquisition transaction;
(B) which, or
b. which if the Offer was were consummated, would materially and adversely affect the Corporation and its Subsidiaries considered on a consolidated basis or could, in the Offeror;
(f) there shall not exist any prohibition at law against the Offeror making the Offer or taking up and paying for 100% of the Common Shares under the Offer's sole judgment, be reasonably expected to have a Material Adverse Effect;
(g) there shall not have occurred any actual or threatened change (including any announcement, governmental or regulatory initiative, condition, event or development involving a change or a prospective change) that the Offeror determines, based upon written advice from its tax advisors, a copy of which has been delivered to the Company, could reasonably be expected to materially increase the effective tax cost to the Offeror of acquiring, holding or disposing of the SV Shares or making distributions or interest payments from the Company and its subsidiaries;
(h) there shall not exist or have occurred (or, if there does exist or shall have previously occurred, there shall not have been disclosed or the Offeror shall not otherwise discover, if not previously disclosed to the Offeror in writing prior to the commencement of the Offer), any condition, event, development or change (or any condition, event or development involving a prospective change) in the business, operations, assets, capitalization, condition (financial or otherwise), results of operations, cash flows, prospects, properties, licenses, permits, rights, privileges or liabilities, whether contractual or otherwise, of or relating to the Company or any of its subsidiaries which, in the Offeror's sole judgment, could reasonably be expected to be adverse and significant to a purchaser of SV Shares;
(i) the Offeror shall not have become aware of any untrue statement of material fact, or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made and at the date it was made (after December giving effect to all subsequent filings in relation to all matters covered in earlier filings) in any document filed by or on behalf of the Company with any securities commission or similar securities regulatory authority in any of the provinces of Canada of in the United States, including without limitation any annual information form, financial statement, material change report or management proxy circular or in any document so filed or released by the Company to the public;
(j) there shall not have occurred, developed or come into effect any occurrence of national or international consequence, or any law, regulation, action, government regulation, inquiry or other occurrences of any nature whatsoever, which seriously adversely affects, or may seriously adversely affect, the financial markets in Canada or the United States, generally which could reasonably be expected to prevent or materially impair the ability of the Company to refinance the indebtedness outstanding under the Credit Facilities and Senior Notes upon maturity on commercially reasonable terms;
(k) the Offeror shall not have the right under this Agreement, the Loan Purchase Agreement, the Stockholders Agreements or the Lock-Up Agreement to terminate any such agreement; and
(l) the Company shall have amended the Credit Facilities to extend the term of the Tranche B term loan facility and the revolving credit facility to October 31, 1998 (other than a change 2000, and otherwise the Credit Facilities shall be on substantially the terms and conditions set out in the market term sheet dated September 9, 1999 executed by the Company and Bank of America, N.A. and National Bank of Canada, a copy of which has been presented to the Offeror. The foregoing conditions are for the exclusive benefit of the Offeror and may be asserted by the Offeror regardless of the circumstances (including any action or price inaction by the Offeror) giving rise to such assertion or may be waived by the Offeror in whole or in part at any time and from time to time, in its sole discretion and shall be exclusive of O.S.any other right which the Offeror may have under the Offer. The failure by the Offeror at any time to exercise or assert any of the foregoing rights shall not be deemed to constitute a waiver of any such right, the wavier of any such right with respect to particular facts or other circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an on-going right which may be asserted at any time and from time to time by the Offeror. Any determination by the Offeror concerning the foregoing conditions shall be final and binding upon all parties. SCHEDULE B
Appears in 1 contract
Sources: Letter Agreement (Consoltex Inc/ Ca)
Conditions of the Offer. The Offer shall not be subject to any conditions other than those substantially described as follows:
(a) not less than 66-2/3% of at the outstanding Class A Multiple Voting Shares and not less than 66-2/3% of the outstanding Class B Subordinate Voting Shares (on a fully-diluted basis, assuming that all rights to acquire Common Shares were to be exercised in full) are tendered expiry time there shall have been validly deposited under the Offer and not withdrawn a number of Shares which constitutes at the expiration least 662/3% of the Offeroutstanding Shares (calculated on a fully diluted basis) (the "Minimum Condition");
(b) the Acquiror shall have determined, acting reasonably, that no material right, property, franchise or license of the Company or any of its Subsidiaries has been or may be impaired (which impairment has not been cured or waived) or otherwise adversely affected as a result of the making of the Offer or the taking up and paying for Shares deposited under the Offer including, for greater certainty, through the triggering of any third party's right (including subject to the provision of notice, the lapse of time, or both) to acquire any material asset of the Corporation or any of its Subsidiaries;
(c) all requisite governmental, stock exchange or regulatory approvals, consents and exemptions with respect to the Offer or any other transaction contemplated by the Offer shall have been obtained on terms satisfactory to the Acquiror acting reasonably including without limitation:
(i) the Commissioner of Competition (the "Commissioner") appointed all approvals or exemptions required under the Competition Investment Canada Act (Canada) (the "Act") shall have issued an advance ruling certificate under section 102 of been obtained on terms satisfactory to the Act in respect of the transaction (the "Transaction") which will result from the Offer; Acquiror acting reasonably;
(ii) the Commissioner shall have advised the Offeror that he does not intend at the current time to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; or (iii) the applicable waiting period under section 123 of the Act shall have expired without the Commissioner having notified the Offeror that he intends to apply to the Competition Tribunal for an order under section 92 of the Act in respect of the Transaction; and no proceedings shall have been taken or threatened under the merger provisions of Part VIII or under section 45 Part VI of the Competition Act 157 (Canada) in respect of the Transaction;transaction which may result from the Offer; and
(ciii) any applicable waiting periods under the ▇▇▇▇-Hart-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust ▇▇▇itrust Improvements Act of 1976 shall have expired or been earlier terminated;
(d) any other requisite regulatory approvals or requirements (including without limitation those of stock exchanges and securities regulatory authorities and under the Investment Canada Act,) shall have been obtained or satisfied on terms satisfactory to the Offeror;
(i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic Canadian or United States federal, provincial, state or foreign court or other tribunal or governmental agency or other regulatory authority or administrative agency or commission or by any elected or appointed public official or private person (including, including without limitation, limitation any individual, corporation, firm, group or other entity) in Canada Canada, the United States or elsewhere elsewhere, whether or not having the force of law, and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied, whether or not having the force of law, which could reasonably be expected to have the effect of:
a. to cease trade(i) making illegal, enjoinor otherwise directly or indirectly restraining or prohibiting or making materially more costly, prohibit the making of the Offer, the acceptance for payment of, payment for, or impose material limitations ownership, directly or conditions on indirectly, of some or all of the purchase Shares by the Acquiror, the completion of a compulsory acquisition or any subsequent acquisition transaction or the sale to the Offeror consummation of any of the Common Shares transactions contemplated by the Offer;
(ii) prohibiting or materially limiting the ownership or operation by the Company or any of them pursuant to its Subsidiaries, or by the Offer Acquiror (or the right parent of the Offeror Acquiror), directly or indirectly, of all or any material portion of the business or assets of the Company, on a consolidated basis, or the Acquiror (or the parent of the Acquiror), directly or indirectly, or compelling the Acquiror (or the parent of the Acquiror), directly or indirectly, to own dispose of or hold separate all or any material portion of the business or assets of the Company, on a consolidated basis, or the Acquiror (or the parent of the Acquiror), directly or indirectly, as a result of the transactions contemplated by the Offer;
(iii) imposing or confirming limitations on the ability of the Acquiror, directly or indirectly, effectively to acquire or hold or to exercise full rights of ownership of the Common Shares, including without limitation the right to vote any Shares acquired or owned by the Acquiror (or the parent of the Acquiror), directly or indirectly, on all matters properly presented to the Shareholders of the Company, including without limitation the right to vote any shares of themcapital stock of any Subsidiary (other than immaterial Subsidiaries) directly or indirectly owned by the Company;
(iv) requiring divestiture by the Acquiror, directly or indirectly, of any Shares; or
b. which if (v) materially adversely affecting the Offer was consummatedbusiness, would materially and adversely affect financial condition or results of operations of the Corporation Company and its Subsidiaries considered on taken as a consolidated basis whole or the Offerorvalue of the Shares or of the Offer to the Acquiror;
(fe) there shall not exist any prohibition at law against the Offeror Acquiror making the Offer or taking up and paying for 100% all of the Common Shares under the OfferOffer or completing any compulsory acquisition or any subsequent acquisition transaction;
(gf) there shall not have occurred (or if there shall have occurred prior to the commencement of the Offer and not publicly disclosed, there shall not have been generally disclosed or disclosed to the Acquiror in writing after the commencement of the Offer) any change (or any condition, event or development involving a prospective change) in the business, assets, capitalization, financial condition, licenses, permits, rights, privileges or liabilities (including without limitation any contingent liabilities that may arise through outstanding, pending or threatened litigation or otherwise), whether contractual or otherwise, of the Company and its Subsidiaries considered as a whole which, in the reasonable judgment of the Acquiror, is materially adverse and there shall not have occurred any change (or any condition, event or development involving a prospective change) in the business, assets, capitalization, financial condition, licenses, permits, rights, privileges or liabilities (including without limitation any contingent liabilities that may arise through outstanding, pending or threatened litigation or otherwise), whether contractual or otherwise, of the Acquiror which is materially adverse (other than a material adverse change that has occurred as a result of acts or omissions within the reasonable control of the Acquiror);
(A) neither the board of directors of the Company nor any committee thereof shall have approved or recommended any proposal or any other acquisition of Shares other than the Offer, (B) no 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 take-over bid (other than the Offer), tender offer or exchange offer, merger, sale of assets, amalgamation, plan of arrangement, reorganization, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction with or involving the Company or any of its Subsidiaries and (C) neither the board of directors of the Company nor any committee thereof shall have resolved to do any of the foregoing; and
(h) there shall not have occurred any change material breach by the Company of any of the representations, warranties or covenants of the Pre-Acquisition Agreement or any termination of the Pre-Acquisition Agreement pursuant to the terms thereof. The foregoing conditions shall be for the exclusive benefit of the Acquiror and may be waived by the Acquiror in whole or in part at any time and from time to time, both before or after December 31, 1998 (other than a change in the market conditions or price of O.S.expiry time. 159 SCHEDULE "B" REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Appears in 1 contract
Sources: Credit Agreement (Oglebay Norton Co)