Common use of Dynamics Corp Clause in Contracts

Dynamics Corp. of America, however, the Supreme Court of the United States held that a state may, as a matter of corporate law and, in particular, those laws concerning corporate governance, constitutionally disqualify a potential acquirer from voting on the affairs of a target corporation without prior approval of the remaining stockholders, provided that such laws were applicable only under certain conditions. Section 203 of the DGCL limits the ability of a Delaware corporation to engage in business combinations with "interested stockholders" (defined as any beneficial owner of 15% or more of the outstanding voting stock of the corporation) unless, among other things, the corporation's board of directors has given its prior approval to either the business combination or the transaction which resulted in the stockholder becoming an "interested stockholder." The Company's Board of Directors has approved the Merger Agreement and Purchaser's acquisition of Shares pursuant to the Offer and, therefore, Section 203 of DGCL is inapplicable to the Merger. Based on information supplied by the Company, Purchaser does not believe that any state takeover statutes purport to apply to the Offer or the Merger. Neither Purchaser nor Parent has currently complied with any state takeover statute or regulation. Purchaser reserves the right to challenge the applicability or validity of any state law purportedly applicable to the Offer or the Merger and nothing in this Offer to Purchase or any action taken in connection with the Offer or the Merger is intended as a waiver of such right. If it is asserted that any state takeover statute is applicable to the Offer or the Merger and an appropriate court does not determine that it is inapplicable or invalid as applied to the Offer or the Merger, Purchaser might be required to file certain information with, or to receive approvals from, the relevant state authorities, and Purchaser might be unable to accept for payment or pay for Shares tendered pursuant to the Offer, or be delayed in consummating the Offer or the Merger. In such case, Purchaser may not be obliged to accept for payment or pay for any Shares tendered pursuant to the Offer. Antitrust. Under the provisions of the HSR Act applicable to the Offer, the purchase of Shares under the Offer may be consummated following the expiration of a 15-calendar day waiting period following the filing by LDI, as the ultimate parent entity of Parent, of a Notification and Report Form with respect to the Offer, unless LDI receives a request for additional information or documentary material from the Antitrust Division of the Department of Justice (the "Antitrust Division) or the Federal Trade Commission (the "FTC") or unless early termination of the waiting period is granted. LDI will make such filing on or about the date of this Offer to Purchase. If, within the initial 15-day waiting period, either the Antitrust Division or the FTC requests additional information or material from LDI concerning the Offer, the waiting period will be extended and would expire at 11:59 p.m., New York City time, on the tenth calendar day after the date of substantial compliance by LDI with such request. Only one extension of the waiting period pursuant to a request for additional information is authorized by the HSR Act. Thereafter, such waiting period may be extended only by court order or with the consent of LDI. In practice, complying with a request for additional information or material can take a significant amount of time. In addition, if the Antitrust Division or the FTC raises substantive issues in connection with a proposed transaction, the parties frequently engage in negotiations with the relevant governmental agency concerning possible means of addressing those issues and may agree to delay consummation of the transaction while such negotiations continue. The Merger would not require an additional filing under the HSR Act if Purchaser owns 50% or more of the outstanding Shares at the time of the Merger or if the Merger occurs within one year after the HSR Act waiting period applicable to the Offer expires or is terminated. The FTC and the Antitrust Division frequently scrutinize the legality under the antitrust laws of transactions such as Purchaser's proposed acquisition of the Company. At any time before or after Purchaser's purchase of Shares pursuant to the Offer, the Antitrust Division or FTC could take such action under the 31 34 antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the purchase of Shares pursuant to the Offer or the consummation of the Merger or seeking the divestiture of Shares acquired by Purchaser or the divestiture of substantial assets of Parent or its subsidiaries, or the Company or its subsidiaries. Private parties may also bring legal action under the antitrust laws under certain circumstances. There can be no assurance that a challenge to the Offer on antitrust grounds will not be made or, if such a challenge is made, of the results thereof. Federal Reserve Board Regulations. Regulations G, U and X (the "Margin Regulations") of the Federal Reserve Board restrict the extension or maintenance of credit for the purpose of buying or carrying margin stock, including the Shares, if the credit is secured directly or indirectly by margin stock. Such secured credit may not be extended or maintained in an amount that exceeds the maximum loan value of all the direct and indirect collateral securing the credit, including margin stock and other collateral. The security arrangements for the financing described in Section 10 of this Offer to Purchase will be negotiated by Pare▇▇ ▇▇▇ NBD. Such financing may be directly or indirectly secured by the Shares or other securities which constitute margin stock. Pursuant to the Margin Regulations, the maximum loan value of margin stock is presently 50% of its current market value, which in the case of credit used to purchase securities, means the total cost of purchase of such securities. The loan value of collateral other than margin stock is the amount that a lender would in good faith lend against such collateral without regard to other loan or collateral arrangements such lender might have. It is Pare▇▇'▇ ▇ntention that all financing for the Offer and the Merger be in full compliance with the Margin Regulations, and Parent believes that direct or indirect margin stock and other collateral having an aggregate loan value in excess of the entire amount of the financing will be available to comply fully with the Margin Regulations. Going Private Transactions. The Merger would have to comply with any applicable Federal law operative at the time of its consummation. Rule 13e-3 under the Exchange Act is applicable to certain "going private" transactions. Purchaser does not believe that Rule 13e-3 will be applicable to the Merger unless the Merger is consummated more than one year after the termination of the Offer. If applicable, Rule 13e-3 would require, among other things, that certain financial information concerning the Company and certain information relating to the fairness of the Merger and the consideration offered to minority stockholders be filed with the Commission and disclosed to minority stockholders prior to consummation of the Merger.

Dynamics Corp. of America, however, the United States Supreme Court of the United States held that a state may, as a matter of corporate law and, in particular, those laws concerning governing corporate governance, constitutionally disqualify a potential acquirer acquiror from voting on the affairs of a target corporation without prior approval of the remaining stockholdersStockholders, provided provided, that such laws were applicable only under certain conditions. Subsequently, a number of Federal courts ruled that various state takeover statutes were unconstitutional insofar as they apply to corporations incorporated outside the state of enactment. Section 203 of the DGCL limits the ability of a Delaware corporation to engage in prevents certain business combinations with "an interested stockholders" (defined as any beneficial owner stockholder for a period of 15% or more of three years following the outstanding voting stock of the corporation) time such person became an interested stockholder, unless, among other things, prior to the corporation's time the interested stockholder became such, the board of directors has given its prior approval to of the corporation approved either the business combination or the transaction in which resulted in the interested stockholder becoming an "interested stockholder." The Company's became such. In connection with the April 1998 Stock Purchase, the Company Board took the actions necessary so that the provisions of Directors has approved the Merger Agreement and Purchaser's acquisition of Shares pursuant to the Offer and, therefore, Section 203 of the DGCL would not be triggered. The Company Board confirmed and ratified these actions in its approval of the Offer, the Merger and the other transactions contemplated by the Merger Agreement, and no further action by the Company Board with respect to Section 203 of the DGCL is inapplicable to required. The Company conducts business in a number of states throughout the Merger. Based on information supplied by the CompanyUnited States, Purchaser does not believe that any state some of which states have enacted takeover statutes purport to apply to the Offer or the Merger. Neither Purchaser nor Parent has currently complied with any state takeover statute or regulationlaws. Purchaser reserves the right to challenge the applicability or validity and Parent do not know whether any of any state law purportedly applicable these laws will, by their terms, apply to the Offer or the Merger and nothing has not complied with any such laws. Should any person seek to apply any state takeover law, Purchaser and Parent will take such action as then appears desirable, which may include challenging the validity or applicability of any such statute in this Offer to Purchase or any action taken in connection with appropriate court proceedings. In the Offer or the Merger is intended as a waiver of such right. If event it is asserted that any one or more state takeover statute is laws are applicable to the Offer or the Merger Merger, and an appropriate court does not determine that it is inapplicable or invalid as applied to the Offer or the MergerOffer, Purchaser or Parent might be required to file certain information with, or to receive approvals from, the relevant state authorities. In addition, and if enjoined, Purchaser might be unable to accept for payment or pay for any Shares tendered pursuant to the Offer, or be delayed in continuing or consummating the Offer or and the Merger. In such case, Purchaser may not be obliged obligated to accept for payment or pay for any Shares tendered pursuant to the Offertendered. Antitrust. Under the provisions of the HSR Act applicable to the Offer, the purchase of Shares under the Offer may be consummated following the expiration of a 15-calendar day waiting period following the filing by LDI, as the ultimate parent entity of Parent, of a Notification and Report Form with respect to the Offer, unless LDI receives a request for additional information or documentary material from the Antitrust Division of the Department of Justice (the See "Antitrust Division) or the Federal Trade Commission (the "FTC") or unless early termination of the waiting period is granted. LDI will make such filing on or about the date of this Offer to Purchase. If, within the initial 15-day waiting period, either the Antitrust Division or the FTC requests additional information or material from LDI concerning the Offer, the waiting period will be extended and would expire at 11:59 p.m., New York City time, on the tenth calendar day after the date of substantial compliance by LDI with such request. Only one extension of the waiting period pursuant to a request for additional information is authorized by the HSR Act. Thereafter, such waiting period may be extended only by court order or with the consent of LDI. In practice, complying with a request for additional information or material can take a significant amount of time. In addition, if the Antitrust Division or the FTC raises substantive issues in connection with a proposed transaction, the parties frequently engage in negotiations with the relevant governmental agency concerning possible means of addressing those issues and may agree to delay consummation of the transaction while such negotiations continue. The Merger would not require an additional filing under the HSR Act if Purchaser owns 50% or more of the outstanding Shares at the time of the Merger or if the Merger occurs within one year after the HSR Act waiting period applicable to the Offer expires or is terminated. The FTC and the Antitrust Division frequently scrutinize the legality under the antitrust laws of transactions such as Purchaser's proposed acquisition of the Company. At any time before or after Purchaser's purchase of Shares pursuant to the Offer, the Antitrust Division or FTC could take such action under the 31 34 antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the purchase of Shares pursuant to the Offer or the consummation of the Merger or seeking the divestiture of Shares acquired by Purchaser or the divestiture of substantial assets of Parent or its subsidiaries, or the Company or its subsidiaries. Private parties may also bring legal action under the antitrust laws under certain circumstances. There can be no assurance that a challenge to the Offer on antitrust grounds will not be made or, if such a challenge is made, of the results thereof. Federal Reserve Board Regulations. Regulations G, U and X (the "Margin Regulations") of the Federal Reserve Board restrict the extension or maintenance of credit for the purpose of buying or carrying margin stock, including the Shares, if the credit is secured directly or indirectly by margin stock. Such secured credit may not be extended or maintained in an amount that exceeds the maximum loan value of all the direct and indirect collateral securing the credit, including margin stock and other collateral. The security arrangements for the financing described in Section 10 of this Offer to Purchase will be negotiated by Pare▇▇ ▇▇▇ NBD. Such financing may be directly or indirectly secured by the Shares or other securities which constitute margin stock. Pursuant to the Margin Regulations, the maximum loan value of margin stock is presently 50% of its current market value, which in the case of credit used to purchase securities, means the total cost of purchase of such securities. The loan value of collateral other than margin stock is the amount that a lender would in good faith lend against such collateral without regard to other loan or collateral arrangements such lender might have. It is Pare▇▇'▇ ▇ntention that all financing for the Offer and the Merger be in full compliance with the Margin Regulations, and Parent believes that direct or indirect margin stock and other collateral having an aggregate loan value in excess of the entire amount of the financing will be available to comply fully with the Margin Regulations. Going Private Transactions. The Merger would have to comply with any applicable Federal law operative at the time of its consummation. Rule 13e-3 under the Exchange Act is applicable to certain "going private" transactions. Purchaser does not believe that Rule 13e-3 will be applicable to the Merger unless the Merger is consummated more than one year after the termination of the Offer. If applicable, Rule 13e-3 would require, among other things, that certain financial information concerning the Company and certain information relating to the fairness of the Merger and the consideration offered to minority stockholders be filed with the Commission and disclosed to minority stockholders prior to consummation of the Merger--Section 12.

Dynamics Corp. of America, however, the Supreme Court of the United States held that a state may, as a matter of corporate law and, in particular, those laws concerning corporate governance, constitutionally disqualify a potential acquirer from voting on the affairs of a target corporation without prior approval of the remaining stockholdersshareholders, provided that such laws were applicable only under certain conditions. Section 203 of the DGCL limits the ability of a Delaware corporation Except as described in this Offer to engage in business combinations with "interested stockholders" (defined as any beneficial owner of 15% or more of the outstanding voting stock of the corporation) unlessPurchase, among other things, the corporation's board of directors has given its prior approval to either the business combination or the transaction which resulted in the stockholder becoming an "interested stockholder." The Company's Board of Directors has approved the Merger Agreement and Purchaser's acquisition of Shares pursuant to the Offer and, therefore, Section 203 of DGCL is inapplicable to the Merger. Based on information supplied by the Company, Purchaser does not believe that any state takeover statutes purport to apply to the Offer or the Merger. Neither neither Purchaser nor Parent has currently complied with any state takeover statute or regulation. Purchaser reserves the right to challenge the applicability or validity of any state law purportedly applicable to the Offer or the Proposed Merger and nothing in this Offer to Purchase or any action taken in connection with the Offer or the Proposed Merger is intended as a waiver of such right. If it is asserted that any state takeover statute is applicable to the Offer or the Proposed Merger and an appropriate court does not determine that it is inapplicable or invalid as applied to the Offer or the Proposed Merger, Purchaser might be required to file certain information with, or to receive approvals from, the relevant state authorities, and Purchaser might be unable to accept for payment or pay for Common Shares tendered pursuant to the Offer, or be delayed in consummating the Offer or the Proposed Merger. In such case, Purchaser may not be obliged to accept for payment or pay for any Common Shares tendered pursuant to the Offer. AntitrustA number of other states have adopted laws and regulations applicable to attempts to acquire securities of corporations which are incorporated, or have substantial assets, shareholders, principal executive offices or principal places of business, or whose business operations otherwise have substantial economic effects, in such states. Under Purchaser does not know whether any of these laws will, by their terms, apply to the provisions Offer and has not complied with any such laws. Should any person seek to apply any state takeover law, Purchaser will take such action as then appears desirable, which may include challenging the validity or applicability of any such statute in appropriate court proceedings. In the HSR Act applicable event it is asserted that one or more state takeover laws are applicable, and an appropriate court does not determine that such law is, or such laws are inapplicable or invalid as applied to the Offer, the purchase of Shares under the Offer may Purchaser might be consummated following the expiration of a 15-calendar day waiting period following the filing by LDIrequired to file certain information with, as the ultimate parent entity of Parent, of a Notification and Report Form with respect to the Offer, unless LDI receives a request for additional information or documentary material from the Antitrust Division of the Department of Justice (the "Antitrust Division) or the Federal Trade Commission (the "FTC") or unless early termination of the waiting period is granted. LDI will make such filing on or about the date of this Offer to Purchase. If, within the initial 15-day waiting period, either the Antitrust Division or the FTC requests additional information or material from LDI concerning the Offerreceive approvals from, the waiting period will be extended and would expire at 11:59 p.m., New York City time, on the tenth calendar day after the date of substantial compliance by LDI with such request. Only one extension of the waiting period pursuant to a request for additional information is authorized by the HSR Act. Thereafter, such waiting period may be extended only by court order or with the consent of LDI. In practice, complying with a request for additional information or material can take a significant amount of timerelevant state authorities. In addition, if the Antitrust Division or the FTC raises substantive issues in connection with a proposed transactionenjoined, the parties frequently engage in negotiations with the relevant governmental agency concerning possible means of addressing those issues and may agree Purchaser might be unable to delay consummation of the transaction while such negotiations continue. The Merger would not require an additional filing under the HSR Act if Purchaser owns 50% or more of the outstanding accept for payment any Common Shares at the time of the Merger or if the Merger occurs within one year after the HSR Act waiting period applicable to the Offer expires or is terminated. The FTC and the Antitrust Division frequently scrutinize the legality under the antitrust laws of transactions such as Purchaser's proposed acquisition of the Company. At any time before or after Purchaser's purchase of Shares tendered pursuant to the Offer, or be delayed in continuing or consummating the Antitrust Division or FTC could take Offer. In such action under the 31 34 antitrust laws as it deems necessary or desirable in the public interestcase, including seeking to enjoin the purchase of Shares pursuant to the Offer or the consummation of the Merger or seeking the divestiture of Shares acquired by Purchaser or the divestiture of substantial assets of Parent or its subsidiaries, or the Company or its subsidiaries. Private parties may also bring legal action under the antitrust laws under certain circumstances. There can be no assurance that a challenge to the Offer on antitrust grounds will not be made or, if such a challenge is made, of the results thereof. Federal Reserve Board Regulations. Regulations G, U and X (the "Margin Regulations") of the Federal Reserve Board restrict the extension or maintenance of credit for the purpose of buying or carrying margin stock, including the Shares, if the credit is secured directly or indirectly by margin stock. Such secured credit may not be extended or maintained in an amount that exceeds the maximum loan value of all the direct and indirect collateral securing the credit, including margin stock and other collateralobligated to accept for payment any Common Shares tendered. The security arrangements for the financing described in See Section 10 of this Offer to Purchase will be negotiated by Pare▇▇ ▇▇▇ NBD. Such financing may be directly or indirectly secured by the Shares or other securities which constitute margin stock. Pursuant to the Margin Regulations, the maximum loan value of margin stock is presently 50% of its current market value, which in the case of credit used to purchase securities, means the total cost of purchase of such securities. The loan value of collateral other than margin stock is the amount that a lender would in good faith lend against such collateral without regard to other loan or collateral arrangements such lender might have. It is Pare▇▇'▇ ▇ntention that all financing for the Offer and the Merger be in full compliance with the Margin Regulations, and Parent believes that direct or indirect margin stock and other collateral having an aggregate loan value in excess of the entire amount of the financing will be available to comply fully with the Margin Regulations. Going Private Transactions. The Merger would have to comply with any applicable Federal law operative at the time of its consummation. Rule 13e-3 under the Exchange Act is applicable to certain "going private" transactions. Purchaser does not believe that Rule 13e-3 will be applicable to the Merger unless the Merger is consummated more than one year after the termination of the Offer. If applicable, Rule 13e-3 would require, among other things, that certain financial information concerning the Company and certain information relating to the fairness of the Merger and the consideration offered to minority stockholders be filed with the Commission and disclosed to minority stockholders prior to consummation of the Merger14.