Further to my prior 2 posts,
The merger is to be effective 12/31/98 or at latest by 3/98 unless "terminated." The termination provision of the merger agreement is as follows:
TERMINATION
The Merger Agreement may be terminated, and the Merger may be abandoned at any time prior to the Effective Time whether before or after the approval and adoption of the Merger Agreement and the transactions contemplated thereby by the shareholders of Livingston or the shareholders of Acquisition: (a) by the mutual agreement of Lucent and Livingston; (b) by Lucent, Acquisition or Livingston if (i) the Effective Time will not have occurred by March 31, 1998; provided that the right to so terminate will not be available to
any party whose failure to fulfill any obligation under the Merger Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date; or (ii) any court of competent jurisdiction or other governmental authority will have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action will have become final and nonappealable;
(c) by Livingston, in the event Lucent or Acquisition materially reaches its obligations under the Merger Agreement, unless such breach is cured within 10 business days after notice to Lucent by Livingston; or (d) by Lucent or Acquisition, in the event Livingston materially breaches its obligations under the Merger Agreement, unless such breach is cured within 10 business days after notice by Lucent or Acquisition.
I don't see a "buy-out" provision here (tho the document is long and it is difficult to scroll thru it online). Nevertheless, LU and Livingston could just "agree" to part ways (for a price to be agreed upon, i.e., payment from LU to Livingston). Or, LU could claim a material "breach" by Livingston (invoking a lawsuit no doubt).
I cannot tell, quickly, whether termination is less burdensome if effected before the shareholders of Livingston vote on 12/12.
Gary Korn |
