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Sub to) accept for payment, and pay for, any and all shares of Company Common Stock validly tendered (and not validly withdrawn) pursuant to the Offer shall be subject to the terms and conditions of this Agreement, including the satisfaction (or to the extent waivable, the waiver by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 A (as they may be amended from time to time in accordance with this Agreement, collectively, the “Offer Conditions”). (ii) Merger Sub expressly reserves the right, at any time, to (i) increase the Offer Price and/or (ii) waive any Offer Condition or make any other changes to the terms and conditions of the 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 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 consideration to be delivered by Merger Sub pursuant to the Offer, (2) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (3) imposes conditions or requirements to the Offer in addition to the Offer Conditions, (4) except as provided in Section 2.15(d), terminates the Offer or accelerates, extends or otherwise changes the Expiration Date of the Offer, or (5) otherwise amends or modifies any of the other terms of the Offer in a manner that adversely affects any holder of shares of Company Common Stock 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 or the Merger, 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 The Offer may not be withdrawn prior to the Expiration Date (or any rescheduled Expiration Date) of the Offer, unless this Agreement is terminated in accordance with Article VIII.
Appears in 1 contract
Conditions of the Offer. Pursuant to the Merger Agreement, we are not required to accept for payment or pay for any Shares and we may terminate the Offer if on the date of the Expiration Time any of the following conditions has not been satisfied (or, to the extent legally permissible, waived):
(1) the Antitrust Condition;
(i) The obligation the representations and warranties of OPAY contained in Section 5.1(a) (Organization and Qualification), the first two sentences of Section 5.2(a), the first three sentences of Section 5.2(b) and in Section 5.2(d) (Capitalization), Section 5.3(a) (Authority), Section 5.6(d) (SEC Filings; Financial Statements) and Section 5.18 (Board Approval) of the Merger Sub Agreement were true and correct in all material respects as of the date of the Merger Agreement and are true and correct in all material respects as of the Offer Closing with the same force and effect as if made as of the Offer Closing (except for those representations and warranties which address matters only as of an earlier date which must have been true and correct in all material respects as of such earlier date) and (ii) all other representations and warranties of OPAY set forth in the Merger Agreement were true and correct as of the date of the Merger Agreement and are true and correct as of the Offer Closing as if made at and as of the Offer Closing (except for those representations and warranties which address matters only as of an earlier date which must have been true and correct as of such earlier date), disregarding for these purposes any exception in such representations and warranties relating to materiality or a “Material Adverse Effect” (as defined below), except in the case of the matters referred to in this clause (ii) for such failures to be true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on OPAY;
(3) since the date of Parent the Merger Agreement, there has not occurred any effect that, individually or in the aggregate, has had or could reasonably be expected to cause have a Material Adverse Effect on OPAY;
(4) OPAY has performed or complied in all material respects with all covenants required by the Merger Sub to) accept for payment, and pay for, any and all shares of Company Common Stock validly tendered (and not validly withdrawn) pursuant Agreement to be performed or complied with by it on or prior to the Offer shall Closing and ACI has received a certificate of an executive officer of OPAY confirming the satisfaction of the conditions set forth in clauses (2), (3) and (4) above;
(5) no law or order issued by any court of competent jurisdiction or other governmental entity or other legal restraint or prohibition preventing the consummation of the Offer or the Merger is in effect;
(6) the Litigation Condition;
(i) OPAY has not published or become obligated to publish a press release or filed or become obligated to file a report with the SEC to the effect that OPAY’s prior financial statements or reports filed with the SEC may no longer be relied upon or announced that the audit committee of the OPAY Board is conducting an investigation with respect to accounting matters, (ii) none of OPAY or any of its directors or executive officers has been named as a party to any criminal proceeding or been informed in writing that he or she has become the target of any investigation by a governmental entity of possible criminal conduct where such conduct relates to the business of OPAY, or (iii) OPAY has not failed to file its Form 10-K with the SEC for the fiscal year ended September 30, 2013, on or prior to December 16, 2013, including an unqualified opinion from Ernst & Young LLP on the effectiveness of OPAY’s internal control over financial reporting as of September 30, 2013, unless the Expiration Time occurred prior to December 16, 2013 but for this clause (7)(iii); and
(8) the Agreement has not been terminated in accordance with its terms. The foregoing conditions are for the sole benefit of ACI and us and, except for the Minimum Condition, which may be waived only with the prior written consent of OPAY, may be waived by ACI and us, in our sole discretion, in whole or in part at any applicable time or from time to time, subject to the terms and conditions of this Agreement, including the satisfaction (or to Merger Agreement and the extent waivable, the waiver by Parent or Merger Sub) applicable rules and regulations of the conditions set forth in Annex A (as they SEC. Our failure at any time to exercise Table of Contents 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 amended asserted at any time and from time to time in accordance with this Agreement, collectively, the “Offer Conditions”)time.
(ii) Merger Sub expressly reserves the right, at any time, to (i) increase the Offer Price and/or (ii) waive any Offer Condition or make any other changes to the terms and conditions of the 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 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 consideration to be delivered by Merger Sub pursuant to the Offer, (2) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (3) imposes conditions or requirements to the Offer in addition to the Offer Conditions, (4) except as provided in Section 2.15(d), terminates the Offer or accelerates, extends or otherwise changes the Expiration Date of the Offer, or (5) otherwise amends or modifies any of the other terms of the Offer in a manner that adversely affects any holder of shares of Company Common Stock 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 or the Merger, 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, unless this Agreement is terminated in accordance with Article VIII.
Appears in 1 contract
Conditions of the Offer. For the purposes of this Section 11, capitalized terms used but not defined herein have the meanings set forth in the Merger Agreement. 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 applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and may delay the acceptance for payment of, or (subject to any such rules and regulations) the payment for, any tendered Shares, and, to the extent permitted by the Merger Agreement, may terminate the Offer (i) The obligation upon TABLE OF CONTENTS termination of the Merger Sub Agreement and (ii) at any scheduled Expiration Date (subject to (and any extensions of Parent to cause Merger Sub to) accept for payment, and pay for, any and all shares of Company Common Stock validly tendered (and not validly withdrawn) the Offer pursuant to the Offer shall be subject to the terms and conditions of this Agreement, including the satisfaction (or to the extent waivable, the waiver by Parent or Merger SubSection 1.1(c) of the conditions set forth in Annex A (as they may be amended from time to time in accordance with this Merger Agreement), collectively, the “Offer Conditions”).
(ii) Merger Sub expressly reserves the right, at any time, to (i) increase the Offer Price and/or (ii) waive any Offer Condition or make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that without the prior written consent of the Companyif: (A) the Minimum Condition may (described in clause (a) below), the Termination Condition (described in clause (h) below) and conditions set forth in clauses (e) and (g) below shall not be amended satisfied by one minute after 11:59 p.m. Eastern time on the Expiration Date; or waived, (B) Merger Sub any of the additional conditions set forth below shall not decrease be satisfied or waived in writing by Celgene:
(a) there shall have been validly tendered in the Offer Price and “received” by the “depository” (Cas such terms are defined in Section 251(h) no change may be made to of the Offer that DGCL) and not validly withdrawn Shares that, considered together with all other Shares owned by Celgene and its “affiliates” (1as defined in Section 251(h) changes of the form DGCL), represent one more Share than 50% of consideration to be delivered by Merger Sub pursuant to the Offer, (2) decreases the total number of Shares sought to be purchased by Merger Sub in outstanding at the Offer, (3) imposes conditions or requirements to time of the Offer in addition to the Offer Conditions, (4) except as provided in Section 2.15(d), terminates the Offer or accelerates, extends or otherwise changes the Expiration Date expiration of the Offer. For the avoidance of doubt, or for purposes of determining whether the Minimum Condition has been satisfied, the Parties shall exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not yet been “received” (5as such term is defined in Section 251(h)(6)(f) otherwise amends or modifies any of the other terms DGCL);
(i) the representations and warranties of Juno set forth in Sections 3.1(a) (Due Organization; Subsidiaries, Etc.), 3.2 (Certificate of Incorporation and Bylaws), 3.20 (Authority; Binding Nature of Agreement), 3.21 (Takeover Laws), 3.23 (Opinion of Financial Advisor) and 3.24 (Brokers and Other Advisors) of the Merger Agreement shall be true and correct (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all material respects as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in a manner that adversely affects which case as of such date or period);
(ii) the representations and warranties of Juno set forth in the first sentence of Section 3.3(a) and clauses (i) – (iii) of Section 3.3(c) solely as such representations relate to Juno (Capitalization, Etc.) of the Merger Agreement shall be true and correct (except for de minimis inaccuracies) in all respects as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any holder such representation or warranty expressly relates to an earlier date or period, in which case as of shares such date or period);
(iii) the representations and warranties of Company Common Stock ▇▇▇▇ set forth the first two sentences of Section 3.3(b) and the second sentence of Section 3.3(d) solely as such representations relate to Juno (Capitalization, Etc.) of the Merger Agreement shall be true and correct in all material respects as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or that wouldwarranty expressly relates to an earlier date or period, in which case as of such date or period);
(iv) the representations and warranties of Juno set forth in Section 3.5(a) (Absence of Changes) of the Merger Agreement shall be true and correct in all respects as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time with respect to the earlier period set forth in Section 3.5;
(v) the representations and warranties of Juno set forth in the Merger Agreement (other than those referred to in clauses (i) through (iv) above) shall be true and correct (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period), except where the failure of such representations and warranties to be so true and correct has not had, and would not reasonably be expected to have, individually or in the aggregate, reasonably be expected a Material Adverse Effect under clause (b) of such definition; TABLE OF CONTENTS (c) ▇▇▇▇ shall have complied with or performed in all material respects the covenants and agreements it is required to prevent comply with or materially delay the consummation of the Offer perform at or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer or the Merger, 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, unless this Agreement is terminated in accordance with Article VIII.Offer Acceptance Time;
Appears in 1 contract
Conditions of the Offer. (i) The obligation Notwithstanding any other provision of Merger Sub to the Offer (and of Parent to cause as provided in the Merger Sub to) accept for paymentAgreement), and pay for, any and all shares of Company Common Stock validly tendered (and not validly withdrawn) pursuant to the Offer shall be but 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 A (as they may be amended from time to time in accordance compliance with this Agreement, collectively, the “Offer Conditions”).
(ii) Merger Sub expressly reserves the right, at any time, to (i) increase the Offer Price and/or (ii) waive any Offer Condition or make any other changes to the terms and conditions of the Offer Merger Agreement, we are not inconsistent with the terms of this Agreement; providedrequired to accept for payment, howeveror, that without the prior written consent subject to any applicable rules and regulations of the Company: SEC, including Rule 14e-1(c) promulgated under the Exchange Act, pay for any Shares validly tendered pursuant to the Offer and not properly withdrawn prior to the expiration of the Offer, if:
(a) immediately prior to the expiration of the Offer, there are any waiting periods (including any extensions thereof) or any approvals or clearances applicable to the Offer or the consummation of the Merger under any applicable Antitrust Laws (as defined in the Merger Agreement), including suspensory filing requirements, waiting periods and required actions, consents that shall not have expired, or been terminated or obtained, as applicable, and that would make illegal the consummation of the Offer or the Merger (the “Antitrust Condition”); or
(b) at any time on or after the date of the Merger Agreement and prior to the expiration of the Offer, any of the following conditions exists and is continuing (and not waived):
(i) there is a law or judgment, injunction, order or decree of any governmental authority with competent jurisdiction restraining, prohibiting or otherwise making illegal the consummation of the Offer or the Merger; Table of Contents (ii) (A) the Minimum Condition may representations and warranties of TECU contained in Section 4.05(a) of the Merger Agreement are not true and correct in all but de minimis respects at and as of the Acceptance Time as if made at and as of such time (it being agreed that for purposes of Section 4.05(a) of the Merger Agreement, any inaccuracy in which the applicable amounts as of a date of determination exceed the amounts set forth in Section 4.05(a) of the Merger Agreement by no more than 0.1% shall be amended or waiveddeemed de minimis), (B) the representations and warranties of TECU contained in Sections 4.01, 4.02, and 4.20 of the Merger Sub Agreement shall not decrease be true and correct in all respects at and as of the Offer Price Acceptance Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct only as of such time), or (C) no change may the other representations and warranties of TECU contained in the Merger Agreement (disregarding all materiality and Company Material Adverse Effect (as defined in the Merger Agreement) qualifications contained therein) shall not be true and correct at and as of the Acceptance Time as if made to at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which will be true and correct only as of such time) except where the Offer that (1) changes the form failure of consideration such representations to be delivered by Merger Sub pursuant to the Offer, (2) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (3) imposes conditions or requirements to the Offer in addition to the Offer Conditions, (4) except as provided in Section 2.15(d), terminates the Offer or accelerates, extends or otherwise changes the Expiration Date of the Offer, or (5) otherwise amends or modifies any of the other terms of the Offer in a manner that adversely affects any holder of shares of Company Common Stock or that wouldso true and correct does not have, 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 or the Merger, 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, unless this Agreement is terminated in accordance with Article VIII.a Company Material Adverse Effect;
Appears in 1 contract
Conditions of the Offer. (i) The obligation of Merger Sub Purchaser to (and of Parent to cause Merger Sub to) accept for payment, payment and pay for, any and all shares of Company Common Stock for Shares validly tendered (and not validly withdrawn) pursuant to the Offer shall be is 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 A clauses “(as they may be amended from time to time in accordance with this Agreement, a)” through “(i)” below (collectively, the “Offer Conditions”):
(a) there will have been validly tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) otherwise beneficially owned by Parent or any of its wholly owned subsidiaries (including Purchaser) (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received”, as defined by Section 251(h)(6)(f) of the DGCL)., represent one more Share than fifty percent (50%) of the total number of Shares outstanding at the time of the expiration of the Offer (the “Minimum Condition”);
(i) the representations and warranties of the Company as set forth in Section 3.1 (Due Organization; TABLE OF CONTENTS Subsidiaries, Etc), Section 3.2 (Certificate of Incorporation and Bylaws), Section 3.21 (Authority; Binding Nature of Agreement), Section 3.24 (Opinion of Financial Advisors) and Section 3.22 (Merger Approval) of the Merger Agreement will be true and correct in all material respects (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of the date of the Merger Agreement and at and as of the Expiration Date as if made on and as of the Expiration Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Merger Agreement will be disregarded and (B) the accuracy of those representations or warranties that address matters only as of a specific date will be measured (subject to the applicable materiality standard as set forth in this clause (b)(i)) only as of such date);
(ii) the representations and warranties of the Company as set forth in the first sentence of Section 3.5 (Absence of Changes) of the Merger Sub expressly reserves Agreement will be true and correct in all respects as of the rightdate of the Merger Agreement and at and as of the Expiration Date as if made on and as of the Expiration Date (it being understood that any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Merger Agreement will be disregarded);
(iii) the representations and warranties of the Company as set forth in subsections (a), (c) (first sentence only) and (d) of Section 3.3 (Capitalization, Etc.) of the Merger Agreement will be true and correct in all respects except for any de minimis inaccuracies as of the date of the Merger Agreement and at and as of the Expiration Date as if made on and as of the Expiration Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) any timeupdate of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Merger Agreement will be disregarded and (B) the accuracy of those representations or warranties that address matters only as of a specific date will be measured (subject to the applicable de minimis standard as set forth in this clause (b)(iii)) only as of such date);
(iv) the representations and warranties of the Company set forth in Section 3.25 (Brokers) of the Merger Agreement will be true and correct in all respects as of the date of the Merger Agreement and at and as of the Expiration Date as if made on and as of the Expiration Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Merger Agreement will be disregarded); and
(v) the representations and warranties of the Company as set forth in the Merger Agreement (other than those referred to in clauses “(i) increase the Offer Price and/or )”, “(ii)”, “(iii)” and “(iv)” above) waive will be true and correct as of the date of the Merger Agreement and at and as of the Expiration Date as if made on and as of the Expiration Date, except where the failure of such representations and warranties to be so true and correct has not had, and would not reasonably be expected to have a Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties will be disregarded, (B) any Offer Condition update of or make any other changes modification to the terms and conditions Company Disclosure Schedule made or purported to have been made after the date of the Offer not inconsistent with Merger Agreement will be disregarded and (C) the terms accuracy of those representations or warranties that address matters only as of a specific date will be measured (subject to the applicable materiality standard as set forth in this Agreement; providedclause (b)(iv)) only as of such date);
(c) the Company will have complied with, howeveror performed, that without the prior written consent in all material respects all of the covenants and agreements it is required to comply with or perform at or prior to the Expiration Date;
(d) Parent and Purchaser will have received a certificate executed on behalf of the Company by the Company: ’s Chief Executive Officer and Chief Financial Officer confirming that the conditions set forth in clauses “(b)”, “(c)” and “(g)” of above have been duly satisfied;
(e) any consent, approval or clearance with respect to, or terminations or expiration of any applicable TABLE OF CONTENTS mandatory waiting period (and any extensions thereof) imposed under the HSR Act, any foreign Antitrust Laws set forth on Schedule 6.2(c) of the Company Disclosure Schedule will have been obtained, will have been received or will have terminated or expired, as the case may be, and if applicable, all antitrust investigations by the FTC or DOJ have been closed; and in the event SBP, Parent, Purchaser or the Company receive a letter from the FTC or DOJ that the applicable waiting period will expire imminently or has expired but the FTC or DOJ is still investigating the transactions contemplated by the Merger Agreement, such antitrust investigation will be deemed closed thirty (30) days after receipt of such letter unless the FTC or DOJ issues a request to SBP, Parent, Purchaser or the Company seeking information or otherwise indicates that it continues to actively investigate the transaction, in which case, such antitrust investigation will be deemed open until the earlier of (A) the Minimum Condition may not be amended FTC or waivedDOJ indicating that its investigation is closed, (B) Merger Sub shall not decrease thirty (30) days after the Offer Price and parties have supplied any requested information to the FTC or DOJ if the FTC or DOJ has indicated that it has no further requests or questions for the parties, or (C) no change may thirty (30) days after the FTC or DOJ has indicated its investigation is still open so long as it has not sought during that time any information from SBP, Parent, Purchaser or the Company about the transactions contemplated by the Merger Agreement;
(i) if a declaration or notification has been made to or requested by CFIUS with respect to transactions contemplated by the Merger Agreement, including the Offer and the Merger, the CFIUS Action with respect to such declaration or notification has occurred and (iii) if any declaration, notification or report forms have been filed or are required to be made filed with the applicable governmental body under any applicable Foreign Direct Investment Laws, including the NSIA, with respect to the transactions contemplated by the Merger Agreement, including the Offer and the Merger, the applicable consent, approval or clearance with respect to such declaration, notification or report has been obtained (each of the conditions in this clause “(f)”, the “Foreign Investment Condition”);
(g) there will not have been issued by any governmental body of competent jurisdiction and remain in effect any judgment, temporary restraining order, preliminary or permanent injunction or other order preventing the acquisition of or payment for Shares pursuant to the Offer that (1) changes the form of consideration to be delivered by Merger Sub pursuant to the Offer, (2) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (3) imposes conditions or requirements to the Offer in addition to the Offer Conditions, (4) except as provided in Section 2.15(d), terminates the Offer or accelerates, extends or otherwise changes the Expiration Date of the Offer, or (5) otherwise amends or modifies any of the other terms of the Offer in a manner that adversely affects any holder of shares of Company Common Stock or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or preventthe Merger nor will any action have been taken, materially delay or materially impair the ability of Parent any law have been promulgated, entered, enforced, enacted, issued or Merger Sub deemed applicable to consummate the Offer or the MergerMerger by any governmental body which, directly or (6) provide any “subsequent offering period” within indirectly, prohibits or makes illegal the meaning acquisition of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be withdrawn prior or payment for Shares pursuant to the Expiration Date (Offer or any rescheduled Expiration Date) the consummation of the OfferMerger;
(h) since the date of the Merger Agreement, unless this there will not have occurred a Material Adverse Effect; and
(i) the Merger Agreement is will not have been terminated in accordance with Article VIII.its terms.
Appears in 1 contract
Sources: Offer to Purchase (Invox Pharma LTD)
Conditions of the Offer. (i) The obligation Notwithstanding any other term of the Offer or the Merger Sub Agreement, Purchasers shall not be required to (and of Parent to cause Merger Sub to) accept for paymentpayment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to Purchasers’ obligation to pay forfor or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for any and all shares of Company Common Stock validly Shares tendered (and not validly withdrawn) pursuant to the Offer (and not theretofore accepted for payment or paid for) unless there shall be subject have been validly tendered in the Offer (and not properly withdrawn) prior to the expiration of the Offer that number of Shares (excluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depository,” as such terms and conditions of this Agreement, including the satisfaction (or to the extent waivable, the waiver are defined by Parent or Merger SubSection 251(h) of the conditions set forth in Annex A (DGCL) that, represent at least one Share more than 50% of the number of Shares that are then issued and outstanding as they may be amended from time of the expiration of the Offer, which we refer to time in accordance with this as the Minimum Tender Condition. Furthermore, notwithstanding any other term of the Offer or the Merger Agreement, collectivelyPurchasers shall not be required to accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for if, at the then-scheduled expiration of the Offer, any of the following conditions exists:
(i) there shall be any Legal Restraint in effect preventing or prohibiting the consummation of the Offer, the “Offer Conditions”).Merger or any of the other transactions contemplated by the Merger Agreement or CVR Agreement;
(ii) Merger Sub expressly reserves the right, at any time, to (i) increase the Offer Price and/or (ii) waive any Offer Condition or make any other changes to the terms and conditions of the 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 any representation or waived, warranty of HilleVax set forth in Article IV (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 consideration to be delivered by Merger Sub pursuant to the Offer, (2) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (3) imposes conditions or requirements to the Offer in addition to the Offer Conditions, (4) except as provided other than those set forth in Section 2.15(d), terminates the Offer or accelerates, extends or otherwise changes the Expiration Date of the Offer, or (5) otherwise amends or modifies any of the other terms of the Offer in a manner that adversely affects any holder of shares of Company Common Stock 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 or the Merger, 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 Date4.01(a) of the OfferMerger Agreement (Due Organization; Subsidiaries), unless this Section 4.03 of the Merger Agreement is terminated in accordance with Article VIII.(Authority; Binding Nature of Agreement), Section 4.04 of the Merger Agreement (No Vote Required), Section 4.05(a)(i) of the Merger Agreement (Non-Contravention), Section 4.06 of the Merger Agreement (Capitalization), Section 4.08(a)(ii) of the Merger Agreement (No Material Adverse Effect), Section 4.19 of the Merger Agreement (No Financial Advisors) and Section 4.25 of the Merger Agreement
Appears in 1 contract
Conditions of the Offer. (i) The obligation of Merger Sub Purchaser to (and of Parent to cause Merger Sub to) accept for payment, payment and (prior to the Offer Acceptance Time) pay for, any and all shares of Company Common Stock for Shares validly tendered (and not validly withdrawn) withdrawn pursuant to the Offer shall be is 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 A clauses (as they a) through (k) below. Notwithstanding any other provisions of the Offer or the Merger Agreement to the contrary and subject to any applicable rules and regulations of the SEC including Rule 14e-1(c) of the Exchange Act, Purchaser is not required to accept for payment or (prior to the Offer Acceptance Time) pay for, and may be amended from time delay the acceptance for payment of, or (prior to time in accordance with this the Offer Acceptance Time) the payment for, any tendered Shares, and, to the extent permitted by the Merger Agreement, collectively, may terminate the “Offer Conditions”).
Offer: (i) upon termination of the Merger Agreement; and (ii) Merger Sub expressly reserves the right, at any time, scheduled Expiration Date (subject to (i) increase the Offer Price and/or (ii) waive any Offer Condition or make any other changes to the terms and conditions extensions of the Offer not inconsistent with the terms of this Agreement; providedOffer), however, that without the prior written consent of the Companyif: (A) the Minimum Tender Condition, the Termination Condition may (described in clause (k) below), the HSR Condition (described in clause (h) below), or the Governmental Impediment Condition (described in clause (j) below) shall not be amended satisfied by one minute after 11:59 p.m., Eastern Time on the Expiration Date; or waived, (B) any of the additional conditions described below has not been satisfied or waived in writing by Parent:
a. the Minimum Tender Condition shall have been satisfied;
b. the representations and warranties of the Company set forth in the first sentence of Section 3.01(a), Section 3.02, clauses (i) — (ii) of Section 3.03(c) (solely as such representations relate to the Company), Section 3.04, Section 3.21, Section 3.23 and Section 3.24 of the Merger Sub Agreement shall be true and correct in all material respects as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period);
c. the representations and warranties of the Company set forth in the first sentence of Section 3.03(a), Section 3.03(d) and Section 3.03(e) of the Merger Agreement shall be true and correct (except for de minimis inaccuracies) in all respects as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of such date or period);
d. the representation and warranty of the Company set forth in Section 3.06(b) of the Merger Agreement shall be true and correct in all respects;
e. the representations and warranties of the Company set forth in the Merger Agreement (other than those referred to in clauses (b) through (d) above) shall be true and correct (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of TABLE OF CONTENTS such date or period), except where the failure of such representations and warranties to be so true and correct has not had, and would not reasonably be expected to have, a Material Adverse Effect;
(i) the Company shall not decrease be in willful and material breach of its obligations under Section 5.03 of the Offer Price Merger Agreement and (Cii) no change may be made with respect to all other obligations, covenants and agreements the Company is required to comply with or perform at or prior to the Offer Acceptance Time, the Company shall have complied with or performed in all material respects such obligations, covenants and agreements;
g. since the date of the Merger Agreement, there has not occurred a Material Adverse Effect that (1) changes is continuing;
h. the form of consideration to be delivered by Merger Sub pursuant to the Offer, (2) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (3) imposes conditions or requirements waiting period applicable to the Offer in addition to under the Offer ConditionsHSR Act has expired or been terminated, (4) except as provided in Section 2.15(d)and, terminates if Parent and the Offer or accelerates, extends or otherwise changes Company have entered into an agreement with any governmental body regarding the Expiration Date timing of the consummation of the Offer, or (5) otherwise amends or modifies any that agreement permits such consummation;
i. Parent and Purchaser have received a certificate executed on behalf of the other terms Company by the Chief Executive Officer and the Chief Financial Officer of the Company confirming that the conditions set forth in paragraphs (b) through (g) above have been satisfied;
j. there shall not have been issued by any governmental body of competent jurisdiction in any jurisdiction in which Parent or the Company has material business operations, and remain in effect, any judgment, temporary restraining order, preliminary or permanent injunction or other order, decree or ruling restraining, enjoining or otherwise preventing the acquisition of or payment for Shares pursuant to the Offer in a manner that adversely affects any holder of shares of Company Common Stock or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or preventthe Merger or subsequent integration, materially delay nor shall any legal requirement have been promulgated, enacted, issued or materially impair the ability of Parent or Merger Sub deemed applicable to consummate the Offer or the MergerMerger by any governmental body in any jurisdiction in which Parent or the Company has material business operations, which prohibits or (6) provide any “subsequent offering period” within makes illegal the meaning acquisition of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be withdrawn prior or payment for Shares pursuant to the Expiration Date (Offer or any rescheduled Expiration Date) the consummation of the Offer, unless this Merger or subsequent integration; and
k. the Merger Agreement is has not been terminated in accordance with Article VIIIits terms. The foregoing conditions are for the sole benefit of Parent and Purchaser, may be asserted by Parent or Purchaser regardless of the circumstances giving rise to any such conditions (including any action or inaction by Parent or Purchaser), and (except for the Minimum Tender Condition, the Termination Condition, the HSR Condition and the Governmental Impediment Condition) may be waived by Parent and Purchaser, in whole or in part, at any time and from time to time, in their sole and absolute discretion. The failure by Parent or Purchaser at any 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 at any time and from time to time prior to the expiration of the Offer (except for conditions relating to government regulatory approvals).
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision of the Offer, we are not required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to our obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for any Shares, and may terminate or amend the Offer, if before the expiration date of the Offer the Minimum Condition, the Merger Agreement Condition, the Section 203 Condition or the Antitrust Condition shall not have been satisfied, or if any of the following conditions exist:
(1) any governmental authority of competent jurisdiction has (i) The obligation enacted, issued or promulgated any law that is in effect as of Merger Sub to (and of Parent to cause Merger Sub to) accept for payment, and pay for, any and all shares of Company Common Stock validly tendered (and not validly withdrawn) pursuant immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer or the Merger or (ii) issued or granted any Order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality Condition");
(2) (i) any of the representations and warranties of 3PAR set forth in the HP Merger Agreement (other than those set forth in Sections 4.1 of the HP Merger Agreement (relating to organization and good standing of 3PAR), Section 4.2 of the Merger Agreement (relating to corporate power and enforceability), Section 4.6 of the HP Merger Agreement (relating to 3PAR's capitalization), Section 4.7(b)-(c) of the HP Merger Agreement (relating to capitalization of 3PAR's subsidiaries) and Section 4.26 of the HP Merger Agreement (relating to broker's and finder's fees)) are not be true and correct in all respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date), except for any failure to be so true and correct which has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, (ii) any of the representations and warranties set forth in Sections 4.1, 4.2 and 4.26 of the HP Merger Agreement are not be true and correct in all material respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date) or (iii) any of the representations and warranties set forth in Sections 4.6 and 4.7(b)-(c) of the HP Merger Agreement are not be true and correct in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 of the HP Merger Agreement, an increase in the aggregate value of the consideration payable in the Offer and the Merger and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date); provided, however, that, for purposes of determining the accuracy of the representations and warranties of 3PAR set forth in the HP Merger Agreement for purposes of clauses (i) and (ii) above, all materiality and "Company Material Adverse Effect" qualifications set forth in such representations and warranties shall be subject disregarded;
(3) 3PAR has failed to perform in all material respects the obligations that are to be performed by it under the HP Merger Agreement at or prior to the terms expiration of the Offer;
(4) a Company Material Adverse Effect has arisen or occurred following the execution and conditions delivery of this Agreement, including the satisfaction (or HP Merger Agreement that is continuing as of immediately prior to the extent waivable, expiration of the waiver Offer;
(5) 3PAR shall have failed to furnish HP with a certificate dated as of the date of determination signed on its behalf by Parent its Chief Executive Officer or Merger Sub) of Chief Financial Officer to the effect that the conditions set forth in Annex A clauses (2), (3) and (4) have occurred and been satisfied; or
(6) the HP Merger Agreement has been properly and validly terminated in accordance with its terms. For purposes of the HP Merger Agreement, the term "Company Material Adverse Effect" means any change, effect, event, circumstance or development (each a "Change", and collectively, "Changes"), individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur:
(i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally;
(ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
(iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business;
(iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world;
(v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world;
(vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof);
(vii) the announcement of the HP Merger Agreement or the pendency or consummation of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this clause (vii) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 of the Merger Agreement (relating to required governmental approvals);
(viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement;
(ix) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); and
(x) any legal proceedings made or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out of the Merger or in connection with any other transactions contemplated by the Merger Agreement; and
(xi) the payment by 3PAR of the Termination Fee (as they may be amended defined in the Dell Merger Agreement) pursuant to the Dell Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses (i) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct business. The foregoing conditions are for the sole benefit of Parent and Purchaser. We expressly reserve the right, at any time and from time to time in accordance with this Agreement, collectively, the “Offer Conditions”).
(ii) Merger Sub expressly reserves the right, at any timeour sole discretion, to (i) increase the Offer Price and/or (ii) waive any Offer Condition or make any other changes to otherwise modify the terms and conditions of the Offer not inconsistent with in any respect. Under the terms of this the HP Merger Agreement; provided, howeverwe would not be permitted to, that without the prior written consent of the Company: 3PAR's consent, (Ai) waive the Minimum Condition, the Antitrust Condition may not be amended or waivedthe Illegality Condition, (Bii) Merger Sub shall not decrease the Offer Price and (C) no change may be made to the Offer that (1) changes the form of consideration to be delivered by Merger Sub pursuant to paid in the Offer, (2iii) decreases decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer, (3iv) imposes extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions or requirements to the Offer other than those described in addition to the Offer Conditionsthis Section 13, (4vi) except as provided modify the conditions described in this Section 2.15(d), terminates the Offer or accelerates, extends or otherwise changes the Expiration Date of the Offer, 13 or (5vii) otherwise amends amend any other term or modifies any of the other terms of condition to the Offer in a manner that adversely affects adverse to the holders of Shares. A failure by Parent and Purchaser at any holder of shares of Company Common Stock or that would, individually or in the aggregate, reasonably be expected time to prevent or materially delay the consummation exercise any of the Offer or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer or the Merger, or (6) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer may foregoing rights shall not be withdrawn prior deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to the Expiration Date (or any rescheduled Expiration Date) of the Offer, unless this Agreement is terminated in accordance with Article VIIItime.
Appears in 1 contract
Conditions of the Offer. (i) The obligation Notwithstanding any other term of the Offer or the Merger Sub to (Agreement, Purchaser shall not be required to, and of Parent shall not be required to cause Merger Sub Purchaser to) , accept for paymentpayment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to Purchaser’s obligation to pay forfor or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any and all shares Shares tendered pursuant to the Offer and, subject to the terms of Company Common Stock the Merger Agreement, may delay the acceptance for payment of or payment for Shares or may terminate or amend the Offer, if:
(a) prior to the Expiration Time, there shall not have been validly tendered (and not validly properly withdrawn) pursuant to at least one Share more than 50% of the number of Shares that are then issued and outstanding as of the expiration of the Offer (the “Minimum Tender Condition”); or
(b) any of the following conditions exist or shall have occurred and be continuing at the Expiration Time:
(i) there shall be subject to any Legal Restraint in effect preventing or prohibiting the terms and conditions consummation of this Agreement, including the satisfaction (or to the extent waivableOffer, the waiver by Parent Merger or Merger Sub) any of the conditions set forth in Annex A (as they may be amended from time to time in accordance with this other transactions contemplated by the Merger Agreement, collectively, the “Offer Conditions”).;
(ii) (A) (1) any representation or warranty of ▇▇▇▇▇ set forth in Article IV of the Merger Sub expressly reserves the rightAgreement (other than those set forth in Section 4.01 (Organization, at any time, to Standing and Power) (i) increase the Offer Price and/or (ii) waive any Offer Condition or make any other changes but only with respect to the terms first sentence thereof), Section 4.02 (Corporate Authorization), Section 4.05 (Capitalization), Section 4.06 (Subsidiaries), Section 4.09(a) (Absence or Certain Changes or Events), Section 4.25 (Brokers and conditions Finder’s Fees), Section 4.26 (Opinion of Financial Advisor) and Section 4.29 (No Vote Required)) shall not be true and correct as of the Agreement Date and at and as of the 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 waived, (B) Merger Sub shall not decrease the Offer Price Closing Time as if made on and (C) no change may be made to the Offer that (1) changes the form of consideration to be delivered by Merger Sub pursuant to the Offer, (2) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (3) imposes conditions or requirements to the Offer in addition to the Offer Conditions, (4) except as provided in Section 2.15(d), terminates the Offer or accelerates, extends or otherwise changes the Expiration Date of the Offer, or (5) otherwise amends or modifies any of the other terms of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (in a manner which case on and as of such specified date), other than for such failures to be true and correct that adversely affects any holder of shares of Company Common Stock have not had or that wouldwould not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (as defined below) (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”), (2) any representation or warranty of ▇▇▇▇▇ set forth in Section 4.01 (Organization, Standing and Power) (but only with respect to the first sentence thereof), Section 4.02 (Corporate Authorization), Section 4.06 (Subsidiaries), Section 4.25 (Brokers and Finder’s Fees), Section 4.26 (Opinion of Financial Advisor) shall not be true and correct in all material respects (provided that any inaccuracy in any representation or warranty set forth in Section 4.25 (Brokers and Finder’s Fees) constituting a liability greater than 0.5% of the Aggregate Consideration shall be deemed material) as of the Agreement Date and at and as of the Offer Closing Time as if made on and as of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), (3) any representation or warranty of ▇▇▇▇▇ set forth in Section 4.05 (Capitalization) of the Merger Agreement shall not be true and correct other than inaccuracies which would not cause the Aggregate Consideration to increase by more than 0.5%, as of the Agreement Date and at and as of the Offer Closing Time as if made on and as of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date) and (4) any representation or warranty of ▇▇▇▇▇ set forth in Section 4.09(a) (Absence or Certain Changes or Events) and Section 4.29 (No Vote Required) of the Merger Agreement shall not be true and correct in all respects as of the Agreement Date and at and as of the Offer Closing Time as if made on and as of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date);
(iii) ▇▇▇▇▇ shall have failed to perform in all material respects the obligations to be performed by it as of such time under the Merger Agreement, including without limitation ▇▇▇▇▇ obligations under Section 6.02 of the Merger Agreement;
(iv) Parent shall have failed to receive from ▇▇▇▇▇ a certificate, dated as of the date on which the Offer expires and signed by an executive officer of ▇▇▇▇▇, certifying to the effect that the Offer Conditions set forth in clauses (ii), (iii), (v) and (vii) have been satisfied as of immediately prior to the expiration of the Offer;
(v) since the Agreement Date, any event, occurrence, development or state of circumstances, facts or condition has occurred that has had or would reasonably be expected to prevent have, individually or materially delay in the consummation of aggregate, a Company Material Adverse Effect;
(vi) the Offer or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer or the Merger, 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, unless this Agreement is shall have been validly terminated in accordance with Article VIIIits terms (the “Termination Condition”);
(vii) the aggregate number of Appraisal Shares shall represent 15% or more of the outstanding Shares of ▇▇▇▇▇; or
(viii) the (A) Closing Cash (as defined in the Merger Agreement) is either (1) less than $55,000,000 if the Offer Closing Time is on or before July 31, 2024 or (2) less than $53,000,000 if the Offer Closing Time is after July 31, 2024 (the “Minimum Cash Condition”); or (B) the Net Working Capital (as defined in the Merger Agreement) is either (1) less than $1,800,000 if the Offer Closing Time is on or before July 31, 2024 or (2) less than $2,000,000 if the Offer Closing Time is after July 31, 2024 (the “Minimum NWC Condition”).
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other term of the Offer or the Merger Agreement, Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, pay for, and may delay the acceptance for payment of or, subject to such rules and regulations, the payment for, any tendered Shares, and to the extent permitted by the Merger Agreement, terminate the Offer (a) upon the termination of the Merger Agreement and (b) at any scheduled Offer Expiration Time (subject to Table of Contents any extensions of the Offer pursuant to the Merger Agreement) or amend the Offer if (i) The obligation the Minimum Condition has not been satisfied as of one minute following 11:59 p.m., New York time, on such Expiration Date or (ii) any of the additional conditions to the Offer set forth below has not been satisfied or waived (to the extent waivable) in writing by Amgen: • the representations and warranties of Five Prime set forth in Section 4.4(a) and the first sentence of Section 4.4(c) (Capitalization, Etc.) of the Merger Sub Agreement being accurate in all respects except for any de minimis inaccuracies at and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time); • the representations and warranties of Five Prime set forth in Section 4.1 (Due Organization; Subsidiaries; Etc.), Section 4.3 (Authority; Binding Nature of Agreement), Section 4.4(b) and (c) (Capitalization, Etc.) (other than the first sentence of Section 4.4(c)), Section 4.24 (Merger Approval) and Section 4.26 (Brokers and Other Advisors) of the Merger Agreement being accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all material respects at and as of the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time); • the representations and warranties of Five Prime set forth in Section 4.7(a) (Absence of Changes) of the Merger Agreement being accurate in all respects at and as of the Offer Acceptance Time as if made on and as of such time; • all of the other representations and warranties of Five Prime set forth in the Merger Agreement (other than those referred to in the first, second and third bullets above) being accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all respects at and as of Parent the Offer Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date or time, in which case as of such other date or time), except where any failure of any representation or warranty to cause Merger Sub to) accept for paymentbe so accurate has not had, and pay forwould not reasonably be expected to have, a Material Adverse Effect (the conditions set forth in this bullet and in the first, second and third bullets above, collectively, the “Representations Condition”); • Five Prime having complied with or performed in all material respects all of its covenants and agreements it is required to comply with or perform under the Merger Agreement at or prior to the Offer Acceptance Time (such condition, the “Performance of Obligations Condition”); • since the date of the Merger Agreement, there not having been any Material Adverse Effect that is continuing as of the Offer Acceptance Time (such condition, the “No Material Adverse Effect Condition”); • the waiting period (or any extension thereof) applicable to the Offer under the HSR Act having expired or been terminated; • Amgen and all shares ▇▇▇▇▇▇▇▇▇ having received a certificate executed on behalf of Company Common Stock validly tendered (Five Prime by its Chief Executive Officer or its Chief Financial Officer confirming that the Representations Condition, the Performance of Obligations Condition and the No Material Adverse Effect Condition have been duly satisfied; • there not validly withdrawn) having been issued by any court of competent jurisdiction or remain in effect any temporary, preliminary or permanent order preventing the acquisition of or payment for Shares pursuant to the Offer, nor shall any action have been taken, or any law (other than any antitrust law) promulgated, entered, enforced, enacted, issued or deemed applicable to the Offer shall or the Merger by any Governmental Body which directly or indirectly enjoins, restrains or otherwise prohibits, or makes illegal, the acquisition of or payment for Shares pursuant to the Offer, or the consummation of the Merger (the “No Legal Prohibition Condition”); and Table of Contents • the Merger Agreement not having been terminated in accordance with its terms (the “Termination Condition”). The foregoing conditions will be in addition to, and not a limitation of, the rights and obligations of Amgen and Purchaser to extend, terminate and/or modify the Offer in accordance with the terms and conditions of the Merger Agreement or applicable law. The foregoing conditions are for the sole benefit of Amgen and Purchaser and, subject to the terms and conditions of this Agreementthe Merger Agreement and applicable law, including the satisfaction (or to the extent waivable, the waiver by Parent or Merger Sub) of the conditions set forth in Annex A (as they may be amended waived by Amgen and Purchaser in whole or in part at any time and from time to time in accordance with this Agreement, collectively, the “Offer Conditions”)their sole discretion.
(ii) Merger Sub expressly reserves the right, at any time, to (i) increase the Offer Price and/or (ii) waive any Offer Condition or make any other changes to the terms and conditions of the 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 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 consideration to be delivered by Merger Sub pursuant to the Offer, (2) decreases the number of Shares sought to be purchased by Merger Sub in the Offer, (3) imposes conditions or requirements to the Offer in addition to the Offer Conditions, (4) except as provided in Section 2.15(d), terminates the Offer or accelerates, extends or otherwise changes the Expiration Date of the Offer, or (5) otherwise amends or modifies any of the other terms of the Offer in a manner that adversely affects any holder of shares of Company Common Stock 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 or the Merger, 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, unless this Agreement is terminated in accordance with Article VIII.
Appears in 1 contract
Sources: Offer to Purchase (Amgen Inc)