The Offer and Related Matters. For so long as Newco 2 continues to proceed with the Tender Offer, procure that: (a) Each of the Acquisition Parties shall: (i) comply in all material respects with the Takeover Code, the Investment Intermediaries Act 1995 (Ireland), the Companies Acts, 1963 to 2001 (Ireland) and all other applicable laws and regulations relevant in the context of the Tender Offer, the Exchange Act and the rules and regulations promulgated thereunder; (ii) subject to any relevant requirement of the Takeover Code, provide the Agent with such information regarding the progress of the Tender Offer as it may reasonably request and in any event regarding all material matters likely to affect the interests of the Lenders in respect of the Tender Offer and upon request consult with the Agent on all such matters; (iii) subject as required by law or by any relevant regulatory requirement (including, without limitation, any provision of the Takeover Code) not issue any press release or make any statement during the course of the Tender Offer which contains any information or statement concerning (i) the Loan Documents or (ii) the Lenders, without first obtaining the prior approval of the information or statement from the Agent (acting on the instructions of Lenders, such instructions not to be unreasonably withheld or delayed); and (iv) comply with and perform (subject to due performance by the Lenders of their obligations to make Loans) all of its obligations under the Tender Offer in all material respects. (b) Each of the Acquisition Parties shall not and shall procure that Newco 2 does not without the prior written consent of the Agent (acting on the instructions of the Required Lenders, such instructions not to be unreasonably withheld or delayed): (i) amend any of the conditions or terms of the Tender Offer following posting of the Offer Document unless required by the Irish Takeover Panel or agree to an extension or increase in the Tender Offer unless such increase in price is fully funded by equity; (ii) save as required by the Irish Takeover Panel or to enable the Directors of Newco 2 to comply with Rule 13 of the Takeover Code (A) waive or fail to invoke (in whole or in part) any condition of the Tender Offer or (B) determine or declare or accept that any such condition is satisfied where it is not actually satisfied or (C) declare the Tender Offer unconditional if any condition is not fulfilled or in circumstances where it would be entitled not to declare the Tender Offer unconditional, provided that (x) Newco 2 shall be entitled to and will at the request of the Agent obtain a ruling from the Irish Takeover Panel before taking or omitting to take any action under this paragraph (b)(ii) in reliance on Rule 13 of the Code; (iii) without prejudice to paragraph (b)(ii), declare the Tender Offer unconditional as to acceptances unless Newco 2 has received acceptances from the holders of the Target Shares which exceed 80% of the Target Shares and is entitled to invoke the compulsory purchase provisions in Section 204 of the Companies Act, 1963 (Ireland) in respect of the remaining Target Shares; (iv) permit any circumstances to arise whereby a mandatory offer is required to be made by any member of the Group by the terms of Rule 9 of the Code in respect of the Target Shares; or (v) acquire any Target Shares at a price above the Tender Offer price. (c) None of Holdings, SPV Ireland, SPV Offshore, SPV BV or the Company will acquire any Target Shares. (d) Newco 2 shall after the Offer Unconditional Date:
Appears in 1 contract
The Offer and Related Matters. For so long as Newco 2 continues to proceed with the Tender 2.1 The Offer, procure that:.
(a) Each Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the Acquisition Parties shall:
events set forth in Annex A shall have occurred or be existing (unless such event shall have been waived by Merger Sub), Parent shall cause Merger Sub to commence, and Merger Sub shall commence, the Offer at the Per Share Amount as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the public announcement of Merger Sub's intention to commence the Offer. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The initial expiration date of the Offer shall be the twentieth business day from and after the date the Offer is commenced (the "Initial Expiration Date"). The obligation of Merger Sub to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (i) comply in all material respects the condition (the "Minimum Condition") that at least the number of Shares that, when combined with the Takeover CodeShares already owned by Parent and its direct or indirect Subsidiaries, constitute a majority of the Investment Intermediaries Act 1995 then outstanding Shares on a fully diluted basis, including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights (Irelandother than the Rights (as defined in the Rights Agreement)) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver of the other conditions set forth in Annex A hereto. Merger Sub expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the Companies Acts, 1963 to 2001 (Ireland) and all other applicable laws and regulations relevant price per Share payable in the context Offer, and to make any other changes in the terms and conditions of the Tender Offer; provided, however, that (notwithstanding Section 9.5) no change may be made which (A) decreases the price per Share payable in the Offer, (B) reduces the maximum number of Shares to be purchased in the Offer, (C) imposes conditions to the Offer in addition to those set forth in Annex A, (D) amends or changes the terms and conditions of the Offer in any manner adverse to the holders of Shares (other than Parent and its Subsidiaries), (E) changes or waives the Minimum Condition, (F) changes the form of consideration payable in the Offer or (G) except as provided below or required by any rule, regulation, interpretation or position of the Commission applicable to the Offer, changes the expiration date of the Offer. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions set forth in Annex A (the "Offer Conditions") shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Commission applicable to the Offer and (C) extend the Offer to provide for a subsequent offering period pursuant to Rule 14d-11 under the Exchange Act for an aggregate period of not more than 20 business days (for all such extensions) beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence. In addition, Parent and Merger Sub agree that Merger Sub shall from time to time extend the Offer, if requested by the Company, (i) if at the Initial Expiration Date (or any extended expiration date of the Offer, if applicable), any of the conditions to the Offer other than the Minimum Condition shall not have been waived or satisfied, and the rules and regulations promulgated thereunder;
Minimum Condition shall have been satisfied, until (taking into account all such extensions) the earlier of August 31, 2000 or such earlier date upon which any such condition shall not be reasonably capable of being satisfied prior to August 31, 2000; or (ii) if at the Initial Expiration Date (or any extended expiration date of the Offer, if applicable), all of the conditions to the Offer other than the Minimum Condition shall have been waived or satisfied and the Minimum Condition shall not have been satisfied, until the earlier of ten (10) business days after such expiration date or August 31, 2000. Upon the prior satisfaction or waiver of all the conditions to the Offer, and subject to any relevant requirement the terms and conditions of this Agreement, Merger Sub will, and Parent will cause Merger Sub to, accept for payment, purchase and pay for, in accordance with the terms of the Takeover CodeOffer, provide all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Agent with such information regarding Offer as soon as reasonably practicable after the progress expiration of the Tender Offer as it may reasonably request Offer. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, without interest thereon, upon the terms and in any event regarding all material matters likely subject to affect the interests conditions of the Lenders in respect Offer. Subject to the terms and conditions of the Tender Offer and upon request consult with the Agent on all such matters;
(iii) subject as required by law or by any relevant regulatory requirement (including, without limitation, any provision the Minimum Condition), Merger Sub shall accept for payment and pay, as promptly as practicable after expiration of the Takeover Code) Offer, for all Shares validly tendered and not issue any press release or make any statement during the course of the Tender Offer which contains any information or statement concerning (i) the Loan Documents or (ii) the Lenders, without first obtaining the prior approval of the information or statement from the Agent (acting on the instructions of Lenders, such instructions not to be unreasonably withheld or delayed); and
(iv) comply with and perform (subject to due performance by the Lenders of their obligations to make Loans) all of its obligations under the Tender Offer in all material respectswithdrawn.
(b) Each As soon as reasonably practicable on the date of commencement of the Acquisition Parties Offer, Merger Sub shall not file with the Commission and disseminate to holders of Shares to the extent required by law a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer and the other Transactions (as hereinafter defined). The Schedule TO shall procure that Newco 2 does not without contain or shall incorporate by reference an offer to purchase (the prior written consent "Offer to Purchase") and forms of the Agent related letter of transmittal and any related summary advertisement (acting the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Parent, Merger Sub and the Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment on the instructions Offer Documents and any amendments thereto prior to the filing thereof with the Commission. Parent and Merger Sub will provide the Company and its counsel with a copy of any written comments or telephonic notification of any verbal comments Parent or Merger Sub may receive from the Required LendersCommission with respect to the Offer Documents promptly after the receipt thereof and will provide the Company and its counsel with a copy of any written responses and telephonic notification of any verbal response of Parent, such instructions not Merger Sub or their counsel. In the event that the Offer is terminated or withdrawn by Merger Sub, Parent and Merger Sub shall cause all tendered Shares to be unreasonably withheld or delayed):
(i) amend any of returned to the conditions or terms of the Tender Offer following posting of the Offer Document unless required by the Irish Takeover Panel or agree to an extension or increase in the Tender Offer unless such increase in price is fully funded by equity;
(ii) save as required by the Irish Takeover Panel or to enable the Directors of Newco 2 to comply with Rule 13 of the Takeover Code (A) waive or fail to invoke (in whole or in part) any condition of the Tender Offer or (B) determine or declare or accept that any such condition is satisfied where it is not actually satisfied or (C) declare the Tender Offer unconditional if any condition is not fulfilled or in circumstances where it would be entitled not to declare the Tender Offer unconditional, provided that (x) Newco 2 shall be entitled to and will at the request of the Agent obtain a ruling from the Irish Takeover Panel before taking or omitting to take any action under this paragraph (b)(ii) in reliance on Rule 13 of the Code;
(iii) without prejudice to paragraph (b)(ii), declare the Tender Offer unconditional as to acceptances unless Newco 2 has received acceptances from the registered holders of the Target Shares which exceed 80% of the Target Shares and is entitled to invoke the compulsory purchase provisions in Section 204 of the Companies Act, 1963 (Ireland) in respect of the remaining Target Shares;
(iv) permit any circumstances to arise whereby a mandatory offer is required to be made by any member of the Group represented by the terms of Rule 9 of certificate or certificates surrendered to the Code in respect of the Target Shares; or
(v) acquire any Target Shares at a price above the Tender Offer pricePaying Agent.
(c) None of Holdings, SPV Ireland, SPV Offshore, SPV BV or the Company will acquire any Target Shares.
(d) Newco 2 shall after the Offer Unconditional Date:
Appears in 1 contract
The Offer and Related Matters. For Upon an Election and thereafter for so long as Newco 2 Bidco continues to proceed with the Tender Offer, procure thatthe Company shall:
(a) Each Unless otherwise agreed by the Required Lenders, cause the Offer Press Release to contain a 90% acceptance condition and such other conditions consistent in all material respects with the conditions in the Scheme Press Release and to provide for a price per Target Share at which the Offer is proposed not more than the Scheme price;
(b) Cause the Offer to be made under the Offer Document and the Offer Document to contain terms and conditions consistent in all material respects with those set out in the Press Release;
(c) Except with the consent of the Acquisition Parties shallRequired Lenders, not:
(i1) extend the Offer beyond the date which is the first Business Day after the expiry of six weeks from the date on which the last notice under Section 986 of the Companies Act 2006 is given or, if earlier, the last day of the Certain Funds Period;
(2) make or approve any increase in the Offer price or make any other acquisition of any Target Share above the Offer price; or
(3) amend, vary, supplement or waive the acceptance condition contained in the Offer Press Release; provided that if circumstances arise where the Takeover Panel would allow reliance by the Company on any other condition of the Offer so as to permit the Company to withdraw from the Offer, not waive such condition without obtaining the consent of the Required Lenders;
(d) Notify the Agent as soon as reasonably practical after it becomes aware of any circumstance or event which would entitle it to lapse or withdraw the Offer in accordance with the Takeover Code, and in such circumstance, if the Required Lenders shall reasonably request, cause Bidco to make such representations to the Takeover Panel on behalf of the Lenders as the Required Lenders shall request with a view to obtaining the consent of the Takeover Panel to permit Bidco to invoke the relevant condition;
(e) Take any action which would result in the Company or any of its Subsidiaries being obliged to make an offer to the shareholders of Target under Rule 9 of the Takeover Code;
(f) Take any other steps necessary to ensure that the Offer Press Release, the Offer Document and the conduct of the Offer comply in all material respects with the Takeover Codeall material applicable consents, the Investment Intermediaries Act 1995 (Ireland), the Companies Acts, 1963 to 2001 (Ireland) and all other applicable laws and regulations relevant in the context of the Tender Offer, the Exchange Act and the rules and regulations promulgated thereunder;
(ii) subject to any relevant requirement of the Takeover Code, provide the Agent with such information regarding the progress of the Tender Offer as it may reasonably request and in any event regarding all material matters likely to affect the interests of the Lenders in respect of the Tender Offer and upon request consult with the Agent on all such matters;
(iii) subject as required by law or by any relevant regulatory requirement (including, without limitation, any provision the Companies ▇▇▇ ▇▇▇▇, the Financial Services and Markets ▇▇▇ ▇▇▇▇ of England and Wales and the Takeover Code, subject to any applicable waivers by the Takeover Panel);
(g) not issue any press release or make any statement during the course of the Tender Offer which contains any information or statement concerning (i) the Loan Documents or (ii) the Lenders, without first obtaining the prior approval of the information or statement Provide updates from time to time to the Agent (acting as to the status of and progress with respect to the Offer and supply to the Agent any updated financial information on the instructions Target and its Subsidiaries which becomes available and will promptly give to the Agent such other information (including details as to the current level of Lenders, such instructions not acceptances) concerning the Offer or otherwise relevant to be unreasonably withheld or delayed)the Offer as the Agent may reasonably request; and
(ivh) comply Take any other steps necessary or advisable to ensure that, other than the Offer Press Release and the Offer Document, no public statement is made by it or any of its Subsidiaries (other than the Acquired Business) in connection with and perform (subject to due performance by the Offer concerning the Lenders of their obligations to make Loans) all of its obligations under and the Tender Offer in all material respects.
(b) Each of the Acquisition Parties shall not and shall procure that Newco 2 does not Loan Documents without the prior written consent of the Agent Lenders (acting on the instructions of the Required Lenders, such instructions not to be unreasonably withheld or delayed):
(i) amend any of the conditions or terms of the Tender Offer following posting of the Offer Document withheld), unless required to do so by the Irish Takeover Panel Code, Takeover Panel, any law or agree to an extension regulation, any applicable stock exchange or increase in the Tender Offer unless such increase in price is fully funded by equity;
(ii) save as required by the Irish Takeover Panel any applicable government or to enable the Directors of Newco 2 to comply with Rule 13 of the Takeover Code (A) waive or fail to invoke (in whole or in part) any condition of the Tender Offer or (B) determine or declare or accept that any such condition is satisfied where it is not actually satisfied or (C) declare the Tender Offer unconditional if any condition is not fulfilled or in circumstances where it would be entitled not to declare the Tender Offer unconditional, provided that (x) Newco 2 shall be entitled to and will at the request of the Agent obtain a ruling from the Irish Takeover Panel before taking or omitting to take any action under this paragraph (b)(ii) in reliance on Rule 13 of the Code;
(iii) without prejudice to paragraph (b)(ii), declare the Tender Offer unconditional as to acceptances unless Newco 2 has received acceptances from the holders of the Target Shares which exceed 80% of the Target Shares and is entitled to invoke the compulsory purchase provisions in Section 204 of the Companies Act, 1963 (Ireland) in respect of the remaining Target Shares;
(iv) permit any circumstances to arise whereby a mandatory offer is required to be made by any member of the Group by the terms of Rule 9 of the Code in respect of the Target Shares; or
(v) acquire any Target Shares at a price above the Tender Offer priceother relevant regulatory authority.
(c) None of Holdings, SPV Ireland, SPV Offshore, SPV BV or the Company will acquire any Target Shares.
(d) Newco 2 shall after the Offer Unconditional Date:
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