DEFINITIONS
(a) As used herein, the following terms have the following meanings:
“Acceptable Confidentiality Agreement” means a confidentiality agreement that is either (i) in effect as of the date of this Agreement or (ii) executed and effective after the date hereof, in the case of each of clauses (i) and (ii), containing terms not less restrictive to the counterparty thereto in any material respect than the terms of the Confidentiality Agreement (it being agreed that such confidentiality agreement need not contain any “standstill” or similar provisions that prohibit the making, or amendment, of any Acquisition Proposal).
“Acquisition Proposal” means any offer or proposal from any Third Party relating to any transaction or series of related transactions involving (i) any direct or indirect acquisition or purchase by any Third Party, whether from the Company or any other Person(s), of securities representing 15% or more of any class of outstanding voting securities of the Company after giving effect to the consummation of such acquisition or purchase, including any tender offer or exchange offer that, if consummated, would result in any Third Party beneficially owning 15% or more of the total outstanding equity securities (by vote or economic interests) of the Company after giving effect to the consummation of such tender offer or exchange offer, (ii) any direct or indirect acquisition, purchase or exclusive license, whether by merger, amalgamation, consolidation, share exchange, business combination, joint venture or otherwise, by any Third Party of assets constituting or accounting for 15% or more of the consolidated revenues, net income or assets of the Company and its Subsidiaries, taken as a whole (measured by the fair market value thereof as of the date of such purchase, acquisition or license), (iii) any liquidation, dissolution, recapitalization, extraordinary dividend or other reorganization of the Company or any of its Subsidiaries, the business of which constitutes 15% or more of the consolidated revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (iv) any merger, consolidation, share exchange, business combination, joint venture, recapitalization, reorganization or other transaction involving the Company, pursuant to which (x) the stockholders of the Company immediately preceding such transaction hold less than 85% of the total outstanding equity securities (by vote or economic interests) in the surviving or resulting entity of such transaction or (y) any Third Party would hold securities representing more than 15% of the total outstanding equity securities (by vote or economic interests) after giving effect to the consummation of such transaction or (v) any combination of the foregoing.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person. As used in this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.
“Aggregate Merger Consideration” means the sum of the aggregate per share Merger Consideration, plus the aggregate Option Cash Amount, plus the aggregate DSU Award Payments.
“Antitrust Laws” means the Sherman Antitrust Act of 1890, the Clayton Antitrust Act, the HSR Act, the Federal Trade Commission Act of 1914 and all other applicable federal, state, local or foreign antitrust, competition, premerger notification or trade regulation laws, regulations or Orders.
“Applicable Law” means, with respect to any Person, any applicable supranational, international, national, federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, statute, act, rule, regulation, Order or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority.
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“Business Day” means a day other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Applicable Law to close.
“CARES Act” means the Coronavirus Aid, Relief and Economic Security Act, as signed into law by the President of the United States on March 27, 2020 (Pub. L. 116–136), and any successor statute(s), together with any rulings or orders issued by any applicable Governmental Authority in connection therewith.
“CFIUS” means the Committee on Foreign Investment in the United States.
“Closing Date” means the date on which the Closing actually occurs pursuant to Section 2.01.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company Balance Sheet” means the unaudited condensed consolidated balance sheet of the Company and its Subsidiaries as of September 30, 2021 and the footnotes thereto set forth in the Company’s quarterly report on Form 10-Q for the quarterly period ended September 30, 2021.
“Company Balance Sheet Date” means September 30, 2021.
“Company Board” means the board of directors of the Company.
“Company Credit Agreements” means (i) the Amended and Restated Credit Agreement, dated as of November 26, 2019, by and among the Company, the lenders named therein and Bank of America, N.A., as administrative agent, as amended by that certain First Amendment to Credit Agreement, dated as of February 5, 2021, (ii) the Term Loan Credit Agreement, dated as of January 21, 2020, by and among the Company, the lenders named therein and Bank of America, N.A., as administrative agent, as amended by that certain First Amendment to Term Loan Credit Agreement, dated as of February 5, 2021, and (iii) the Term Loan Credit Agreement, dated as of February 5, 2021, by and among the Company, the lenders named therein and JPMorgan Chase Bank, N.A., as administrative agent.
“Company Disclosure Schedule” means the disclosure schedule that has been prepared by the Company and delivered to Parent and Merger Sub prior to or simultaneously with the execution of this Agreement.
“Company DSU Awards” means deferred stock unit awards under the Company Stock Plans covering shares of Company Common Stock (including any restricted stock units deferred pursuant to the Company Stock Plans).
“Company Employee Plan” means (i) each “employee benefit plan,” as defined in Section 3(3) of ERISA, (ii) each employment, severance, gratuity, jubilee, termination, indemnity or similar contract, plan, arrangement, policy or guidelines and (iii) each other plan or arrangement providing for compensation (including variable cash compensation and sales commissions), bonuses, profit-sharing, stock option or other stock-related rights (including restricted stock units and stock purchase rights) or other forms of cash or equity or equity-based incentive or deferred compensation, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits), other than (x) any such contract, plan, arrangement or policy that is terminable “at will” (or following a notice period imposed by Applicable Law) without any contractual obligation on the part of the Company to make any severance, termination, change in control, or similar payment, or (y) any such contract, plan, arrangement or policy that is statutorily mandated and administered by a Governmental Authority, which, in each case of clauses (i) through (iii), is maintained, sponsored, administered or contributed to or required to be contributed to by the Company or any Subsidiary of the Company for the benefit of any current or former employees, directors, officers or individual consultants of the Company or any Subsidiary of the Company, or under or with respect to which the Company or any Subsidiary of the Company has or would reasonably be expected to have any current or contingent liability or obligation.
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“Company Equity Awards” means the Company Stock Options, the Company DSU Awards, the Company RSU Awards and the Company PRSU Awards.
“Company Financial Advisor” means Qatalyst Partners LP or another independent financial advisor of nationally recognized reputation.
“Company Material Adverse Effect” means any change, event, effect, occurrence or development that, individually or in the aggregate, has had or would reasonably be expected to have, a material adverse effect on (i) the business, assets, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, or (ii) the ability of the Company and its Subsidiaries to consummate the Merger; provided, however, that, solely with respect to clause (i), none of the following (alone or in combination) shall constitute or be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur:
(A) the negotiation, execution, announcement or performance of this Agreement or the pendency or consummation of the Merger or the other transactions contemplated by this Agreement (including loss of or adverse change in the relationship of the Company and its Subsidiaries with their respective employees, investors, contractors, lenders, customers, Distribution Partners, technology and other partners, suppliers, vendors, Governmental Authorities or other Third Parties); provided, however, that this clause (A) shall not apply to any representation or warranty contained in Section 4.04 of this Agreement to the extent that such representation or warranty expressly addresses consequences resulting from the execution of this Agreement or the pendency or consummation of the Merger or the other transactions contemplated by this Agreement;
(B) the identity of Parent or any of its Affiliates as the acquiror of the Company, or any communication by Parent or any of its Affiliates regarding plans, proposals or projections with respect to the Company or its Subsidiaries;
(C) general business, economic or political conditions, or the capital, credit, banking, debt, financial or currency markets, in the United States or elsewhere in the world, or changes therein, including changes in interest or exchange rates or any suspension of trading in securities on any securities exchange or other market;
(D) general conditions in any industry in which the Company and its Subsidiaries operate, or changes therein;
(E) any changes in GAAP or other accounting standards (or the official interpretation thereof);
(F) any changes in Applicable Law (or official interpretation thereof), including the adoption, implementation, repeal or modification of any law, regulation or policy (or the official interpretation thereof) by any Governmental Authority, or any panel or advisory body empowered or appointed thereby;
(G) the taking of any action, or refraining from taking any action, by the Company or any of its Subsidiaries, in each case at the express written direction of Parent or Merger Sub or as expressly required by this Agreement, or the taking of any action, or failure to take any action, by Parent, Merger Sub or any of their Affiliates;
(H) any Stockholder Litigation, or any Proceeding for appraisal of the fair value of any shares of Company Common Stock pursuant to the DGCL in connection herewith;
(I) any outbreak, continuation or escalation of acts of terrorism, cyberterrorism, hostilities, sabotage or war, hurricanes, volcanoes, tornados, floods, earthquakes, tsunamis, mudslides, weather-related events, epidemics, pandemics (including COVID-19), plagues, public health events, fires or natural or man-made disaster or act of God;
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(J) the availability or cost of equity, debt or other financing to Parent, Merger Sub or the Surviving Corporation;
(K) any failure, in and of itself, by the Company to meet, or changes to, internal or analysts’ estimates, projections, expectations, budgets, guidance or forecasts of revenue, earnings, cash flow or any other financial measures (which include, for the avoidance of doubt, annualized recurring revenue and bookings) (whether made by the Company or any Third Parties), any change, in and of itself, in the Company’s credit ratings, or in the price or trading volume of shares of the Company Common Stock (it being understood that the underlying causes of such failures or changes in this clause (K) may be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur, unless (and to the extent) such underlying cause would otherwise be excepted by this definition); or
(L) the matters expressly set forth in Section 4.09(b)(ii) of the Company Disclosure Schedule.
provided that in the case of clauses (C), (D), (E), (F) and (I), such effect may be taken into account in determining whether or not there has been a Company Material Adverse Effect to the extent such effect has a disproportionate adverse effect on the Company and its Subsidiaries as compared to other participants in the industry in which the Company and its Subsidiaries operate, in which case only the incremental disproportionate impact or impacts may be taken into account in determining whether or not there has been or would reasonably be expected to be a Company Material Adverse Effect.
“Company Notes” means the Company’s 1.250% Senior Notes due 2026, 4.500% Senior Notes due 2027, and 3.300% Senior Notes due 2030.
“Company Payoff Letters” means, with respect to each of the Company Credit Agreements, a payoff letter executed by the lenders or other creditors thereunder (or their duly authorized agent or representative), in each case, which shall be in form and substance reasonably satisfactory to Parent.
“Company PRSU Awards” means restricted stock unit awards under the Company Stock Plans that are subject to performance-based vesting.
“Company Required Financial Information” means (i) the audited consolidated balance sheet of the Company as of December 31, 2020 and 2019 and the related audited consolidated statements of income and cash flows for the fiscal years then ended, and (y) the unaudited condensed consolidated balance sheet of the Company as of September 30, 2021 and the related unaudited condensed consolidated statements of income and cash flows for the nine months then ended, (ii) (x) if the Marketing Period has not been completed on or prior to February 11, 2022, the audited consolidated balance sheet of the Company as of December 31, 2021 and the related audited consolidated statements of cash flows for the fiscal year then ended, and (y) if the Marketing Period has not been completed on or prior to (A) May 16, 2022, the unaudited condensed consolidated balance sheet of the Company as of March 31, 2022 and the related unaudited condensed consolidated statements of income and cash flows for the three months then ended, (B) August 12, 2022, the unaudited condensed consolidated balance sheet of the Company as of June 30, 2022 and the related unaudited condensed consolidated statements of income and cash flows for the six months then ended, or (C) November 11, 2022, the unaudited condensed consolidated balance sheet of the Company as of September 30, 2022 and the related unaudited condensed consolidated statements of income and cash flows for the nine months then ended; (iii) information reasonably requested by Parent in the preparation of the pro forma financial statements referred to in Section 6.17(c) (after giving effect to each of the provisos thereto); (iv) all other financial data and other information regarding the Company and its Subsidiaries that is reasonably requested by Parent and required for Parent to produce a customary offering memoranda for high yield debt securities issued on a “Rule 144A for life” basis (for the avoidance of doubt (a) excluding, without limitation, the Excluded Information, and (b) which shall be subject to the provisos in Section 6.17(c)) to consummate the offering of high-yield debt securities contemplated by the Debt Commitment Letter; and (v) a substantially complete draft of a customary “comfort”
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letter for a Rule 144A for life offering of high yield debt securities (including customary “negative assurance” and change period comfort) from independent accountants of the Company in connection with such Rule 144A offering that such independent accountants are prepared to deliver upon the “pricing” and “closing” of such offering; provided that in no event shall the Company Required Financial Information be deemed to include (and no provision of this Agreement shall be interpreted to require delivery by the Company, any of its Subsidiaries or their respective Representatives of) any Excluded Information. For the avoidance of doubt, financial statements referred to in clauses (i) and (ii) will be prepared in accordance with GAAP and the unaudited financial statements referred to in clauses (i) and (ii) of this section will be reviewed by the independent accountants of the Company as provided in the procedures specified by PCAOB AS 4015.
“Company Return” means any Tax Return of the Company or any of its Subsidiaries.
“Company RSU Awards” means restricted stock unit awards under the Company Stock Plans that are not subject to performance-based vesting.
“Company Stock Option” means each option to purchase shares of Company Common Stock (whether vested or unvested) outstanding under any Company Stock Plan, other than under the ESPP.
“Company Stock Plans” means, collectively, the Company’s Second Amended and Restated 2014 Equity Incentive Plan, the Company’s 2021 Inducement Plan, the Wrangler Topco, LLC Second Amended and Restated 2018 Equity Incentive Plan as assumed by the Company, the Wrike, Inc. Amended and Restated 2013 Stock Plan, as Amended and Restated and assumed by the Company, and the Company’s Amended and Restated 2005 Equity Incentive Plan, as amended.
“Company Termination Fee” means an amount equal to $409,000,000.
“Contract” means any legally binding contract, agreement, note, bond, indenture, mortgage, guarantee, option, lease (or sublease), license, sales or purchase order, warranty, commitment, or other instrument, obligation, arrangement or understanding of any kind.
“COVID-19” means SARS-CoV-2 or the coronavirus (COVID-19) pandemic, including any evolutions or mutations of SARS-CoV-2 or the coronavirus (COVID-19) disease or related or associated epidemics, pandemics or disease outbreaks.
“COVID-19 Measures” means any quarantine, “shelter in place”, “stay at home”, social distancing, shut down, closure, sequester, safety or similar law, directive, protocols or guidelines promulgated by any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19, including the CARES Act and the Families First Coronavirus Response Act.
“Debt Financing Sources” shall mean each Person, together with such Person’s Affiliates, that has committed to provide the Debt Financing in connection with the transactions contemplated hereby, including the parties (subject to the immediately succeeding sentence) to the Debt Commitment Letter and any joinder agreements thereto. Notwithstanding the foregoing and for the avoidance of doubt, none of Parent, Merger Sub, the Preferred Equity Issuer or any of their respective Affiliates shall constitute “Debt Financing Sources”.
“Distribution Partners” means those Persons engaged by the Company and its Subsidiaries for the distribution and/or resale of technology, products and/or services of the Company and/or its Subsidiaries, including value-added resellers, value-added distributors, original equipment manufacturers and other third party distributors or resellers.
“DPA” means Section 721 of Title VII of the Defense Production Act of 1950, as amended, (codified at 50 U.S.C. § 4565) and the regulations promulgated thereunder, codified at 31 C.F.R. Parts 800 to 802.
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“Environmental Law” means any Applicable Law concerning pollution, public or worker health or safety (regarding exposure to Hazardous Substances), or protection of the natural environment, including any such Applicable Law relating to the manufacture, handling, transport, use, treatment, storage, disposal or release of, or exposure to, any Hazardous Substance.
“Environmental Permits” means any Governmental Authorizations issued or required under any Environmental Law.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” of any entity means any other entity that, together with such entity, would at any relevant time be treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA.
“ESPP” means the Company’s 2015 Employee Stock Purchase Plan, as amended.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Ex-Im Laws” means all U.S. and non-U.S. applicable laws, regulations and Orders relating to export, reexport, transfer, and import controls, including the Export Administration Regulations, the International Traffic in Arms Regulations, the customs and import laws administered by U.S. Customs and Border Protection, and the EU Dual Use Regulation.
“Foreign Employee Plan” means any Company Employee Plan that is maintained pursuant to or is subject to the laws of a country other than the United States.
“GAAP” means generally accepted accounting principles in the United States.
“Government Contract” means any Contract for the sale of supplies or services currently in performance or that has not been closed that is between the Company or any of its Subsidiaries on one hand and a Governmental Authority on the other or entered into by the Company or any of its Subsidiaries as a subcontractor at any tier in connection with a Contract between another Person and a Governmental Authority.
“Government Official” shall mean any officer or employee of a Governmental Authority or any department, agency or instrumentality thereof, including state-owned entities, or of a public organization or any person acting in an official capacity for or on behalf of any such government, department, agency, or instrumentality or on behalf of any such public organization.
“Governmental Authority” means (i) any government or any state, department, local authority or other political subdivision thereof, or (ii) any governmental or quasi-governmental body, agency, authority (including any central bank, Taxing Authority or trans-governmental or supranational entity or authority), minister or instrumentality (including any court or tribunal) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government or any arbitrator or arbitral body (public or private).
“Governmental Authorizations” means, with respect to any Person, all licenses, permits, certificates, waivers, consents, franchises (including similar authorizations or permits), exemptions, variances, expirations and terminations of any waiting period requirements and other authorizations and approvals issued to such Person by or obtained by such Person from any Governmental Authority, or of which such Person has the benefit under any Applicable Law.
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“Hazardous Substance” means any substance, material, waste, pollutant, contaminant, toxic substance, hazardous waste, hazardous material or hazardous substance regulated under, or for which standards of conduct or liability may be imposed pursuant to, Environmental Law, including petroleum or petroleum-containing product or by-product, asbestos or asbestos-containing material, polychlorinated biphenyls, per and polyfluoroalkyl substances, toxic mold or radioactive materials.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“Indebtedness” means, as to the Company and its Subsidiaries, without duplication, all (i) indebtedness of the Company or any of its Subsidiaries for borrowed money (including the aggregate principal amount thereof and the aggregate amount of any accrued but unpaid interest thereon), (ii) obligations of the Company or any of its Subsidiaries evidenced by bonds, notes or debentures, (iii) indebtedness of the Company and its Subsidiaries evidenced by letters of credit to the extent drawn and not cash collateralized, (iv) obligations of the Company or any of its Subsidiaries under leases required to be capitalized under GAAP (but excluding the effects of Financial Accounting Standards Board Accounting Standard Codification 842), (v) obligations of the Company or any of its Subsidiaries in respect of interest rate and currency obligation swaps and hedging arrangements, in each case, calculated as if the applicable swap or hedging arrangement was terminated at the Effective Time and (vi) obligations of the Company or any of its Subsidiaries to guarantee the types of payment obligations set forth in clauses (i)-(v) above on behalf of any Person other than the Company or its Subsidiaries; provided that, notwithstanding the foregoing or anything else to the contrary in this Agreement and for clarification, Indebtedness shall not include (A) any letters of credit to the extent not drawn (or otherwise cash collateralized), (B) surety bonds, performance bonds or other bonds to the extent not drawn (or otherwise cash collateralized), (C) any intercompany indebtedness among the Company and its direct or indirect wholly-owned Subsidiaries (including between such wholly-owned Subsidiaries), (D) deferred rent arising from free rental periods at the beginning of any lease, (E) any prepaid amounts, customer deposits or deferred revenue, (F) trade payables or other current liabilities in the ordinary course of business, (G) obligations under operating leases, (H) any fees, costs and expenses to the extent incurred by or at the written direction of Parent or Merger Sub relating to Parent’s, Merger Sub’s or any of their respective Affiliates’ financing (including any Financing) for the transactions contemplated by this Agreement or any other liabilities or obligations incurred by Parent, Merger Sub or any of their respective Affiliates in connection with the transactions contemplated by this Agreement or otherwise, (I) short-term deferred revenues, (J) obligations arising under revenue sharing agreements, deferred purchase price obligations, conditional sale obligations, escrow obligations, earnout obligations or similar obligations or (K) any fees, costs and expenses incurred by the Company that are reimbursable by Parent or Merger Sub hereunder, including pursuant to Section 6.17, Section 6.20 and Section 6.23.
“Indenture” means that certain Indenture, dated as of November 15, 2017, by and between the Company and the Trustee relating to the Company Notes, including, as applicable, (i) Supplemental Indenture dated as of November 15, 2017, (ii) Second Supplemental Indenture dated as of February 25, 2020, and (iii) Third Supplemental Indenture dated as of February 18, 2021.
“Knowledge of the Company” means the actual knowledge after reasonable inquiry of each of the individuals identified in Section 1.01 of the Company Disclosure Schedule.
“Lien” means, with respect to any property or asset, any mortgage, lien, license, pledge, charge, security interest or encumbrance in respect of such property or asset.
“Made Available” means that such information, document or material was: (i) publicly available on the SEC EDGAR database prior to 5:00 p.m. Eastern time two Business Days prior to the execution of this Agreement; (ii) delivered to Parent or any of Parent’s Affiliates or Representatives via electronic mail, in hard copy form or via ShareFile or similar service prior to 9:00 p.m. Eastern time on January 30, 2022; or (iii) made available for review by Parent or any of Parent’s Affiliates or Representatives prior to 9:00 p.m. Eastern time on January 30, 2022 in the virtual data room maintained by or on behalf of the Company in connection with the transactions contemplated by this Agreement.
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“Marketing Period” means the first period of fourteen consecutive Business Days after the date of this Agreement commencing on the date that (a) Parent has been provided the Company Required Financial Information and (b) all of conditions set forth in Section 7.01, have been satisfied or, to the extent permitted by Applicable Law, waived and nothing has occurred and no condition exists that would cause any of the conditions set forth in Section 7.01 to fail to be satisfied assuming the Closing were to be scheduled for any time during such fourteen consecutive Business Day period; provided that (i) if the Marketing Period has not been completed on or prior to August 19, 2022, then the Marketing Period shall not commence prior to September 6, 2022, (ii) November 25, 2022 shall not count as a Business Day for such fourteen consecutive Business Day period, (iii) if such fourteen consecutive Business Day period were to commence but would not be completed in accordance with its terms on or prior to December 16, 2022, then such fourteen consecutive Business Day period shall not commence prior to January 3, 2023, (iv) the Marketing Period shall be deemed to have been complied with and automatically end on any earlier date on which the Debt Financing is consummated and Parent shall have obtained the net proceeds contemplated thereby (including as a result of the issuance of notes into escrow) and (v) the Marketing Period shall be deemed not to have commenced if, after the date of this Agreement and prior to the completion of such fourteen consecutive Business Day period, (A) the Company’s auditor shall have withdrawn its audit opinion with respect to any annual audited financial statements constituting Company Required Financial Information, in which case the Marketing Period shall not commence unless and until a new unqualified audit opinion is issued with respect to such financial statements for the applicable periods by such auditor or another independent public accounting firm of recognized national standing, (B) the Company shall have announced, or the board of directors of the Company shall have determined, that a restatement of any historical financial information constituting Company Required Financial Information is required, in which case the Marketing Period shall be deemed not to commence unless and until such restatement has been completed and the applicable Company Required Financial Information has been amended to reflect such restatement or Parent or the board of directors of Company subsequently concludes that no restatement shall be required in accordance with GAAP, (C) the Company Required Financial Information, when taken as a whole, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained in the Company Required Financial Information not materially misleading in light of the circumstances under which such statements are made, in which case the Marketing Period shall not be deemed to commence unless and until such Company Required Financial Information has been updated or supplemented so that there is no longer, when taken as a whole, any such untrue statement of material fact or omission to state any material fact necessary in order to make the statements contained therein not materially misleading, when taken as a whole, in light of the circumstances under which such circumstances are made (provided that any supplemental disclosure that would typically be included in a customary pricing supplement (and that would not typically require circulating updated disclosure to potential investors prior to pricing of any related securities offering) shall not be construed to be a material misstatement or omission), or (D) the financial statements in the Company Required Financial Information are not sufficient to permit the Company’s independent public accountants to issue a customary “comfort” letter to the Financing Sources, including as to customary negative assurance and change period comfort, in order to consummate any offering of debt securities on any day during the Marketing Period (or the Company’s accountants are not prepared to issue a customary comfort letter subject to their completion of customary procedures). If at any time the Company shall reasonably believe that it has provided the Company Required Financial Information and that the Marketing Period has commenced, the Company may deliver to Parent a written notice to that effect (stating when it believes it completed such delivery and when it believes such period has commenced), in which case, subject to clauses (A) through (C) above in the immediately preceding sentence, the Marketing Period will be deemed to have commenced on the date of such notice, unless Parent in good faith reasonably believes the Marketing Period has not commenced and, within two Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with reasonable specificity why Parent believes the Marketing Period has not commenced and what Company Required Financial Information is required to be delivered to commence the Marketing Period), following which the Company Required Financial Information shall be deemed to have been received by Parent as soon as the Company delivers to Parent such specified portion of the Company Required Financial Information; provided that it is understood that the delivery of such written notice from Parent to the Company will not prejudice the Company’s right to assert that the Company Required Financial Information has in fact been delivered and that the Marketing Period has commenced.
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“Nasdaq” means the Nasdaq Global Select Market.
“NISPOM” means National Industrial Security Program Operating Manual and related guidance issued by the Defense Counterintelligence and Security Agency.
“OFAC” means the Office of Foreign Assets Control within the U.S. Department of the Treasury.
“Order” means, with respect to any Person, any order, injunction, judgment, decree, decision, ruling, writ, award, or assessment enacted, adopted, promulgated or applied by a Governmental Authority or arbitrator of competent jurisdiction that is binding upon or applicable to such Person or its property.
“Parent Material Adverse Effect” means any change, event, effect, occurrence or development that, individually or in the aggregate, would reasonably be expected to prevent or materially delay consummation of the Merger and the other transactions contemplated by this Agreement.
“Parent Termination Fee” means an amount equal to $818,000,000.
“Permitted Liens” means (i) Liens disclosed on the Company Balance Sheet, (ii) Liens for Taxes, assessments, utilities or other governmental charges or levies that are (A) not yet due and payable (or are due and payable without penalty) or (B) being contested in good faith and for which adequate reserves have been established in accordance with GAAP, (iii) the interests of lessors and sublessors of any leased properties and other statutory Liens in favor of lessors and sublessors, (iv) easements, rights of way and other imperfections of title or encumbrances that do not materially interfere with the present use or occupancy of, or materially detract from the value of, the subject real property, (v) requirements and restrictions of zoning, building and other laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Authority having jurisdiction over such real property which are not violated by the current use or occupancy of such real property, (vi) Liens incurred or deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance, pension programs and similar obligations, (vii) mechanics’, carriers’, workmen’s, repairmen’s or other like liens or other similar encumbrances arising or incurred in the ordinary course of business which are not due and payable, and that do not materially interfere with the present use of, or materially detract from the value of, the real or tangible property related thereto, (viii) nonexclusive licenses and sublicenses of Intellectual Property granted in the ordinary course of business, (ix) Liens permissible under any applicable loan agreements or indentures, (x) Liens that do not materially adversely affect the use of or impair the value of the tangible asset or real property subject to such Liens, (xi) any Liens that would be discharged or released at or prior to the Closing, (xii) any Lien securing capital lease obligations or purchase money debt, and (xiii) Liens provided by operation of law.
“Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Personal Information” means all data relating to an identified or identifiable natural person, household or device (i.e., data that identifies an individual or, in combination with any other information or data, is capable of identifying an individual, household or device) or information that constitutes “personal data”, “personal information” or “personally identifiable information”, or any similar term, as defined in Privacy Laws applicable to the Company and its Subsidiaries.
“Privacy Laws” means all Applicable Laws in any jurisdiction relating to the privacy and protection or processing of “personal data”, “personal information” or “personally identifiable information”, or any similar term, or to data breaches, security, or security breach notification requirements including, in each case to the extent applicable to the Company or any of its Subsidiaries, the Federal Trade Commission Act, California Consumer Privacy Act (“CCPA”), Video Privacy Protection Act (“VPPA”), Telephone Consumer Protection Act (“TCPA”) and EU General Data Protection Regulation (Regulation 2016/679/EU) (“EU GDPR”), the EU
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GDPR as it forms part of the laws of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018, the UK Data Protection Act 2018, the e-Privacy Directive (2002/58/EC) and the UK Privacy and Electronic Communications (EC Directive) Regulations 2003, including any predecessor, successor or implementing legislation, and any amendments or re-enactments, of the foregoing.
“Proceeding” means any suit, claim, action, charge, demand, complaint, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, inquiry, examination or investigation commenced, brought, conducted or heard by or before any court or other Governmental Authority.
“Representatives” means, with respect to any Person, its Affiliates, directors, officers, employees, financial advisors, attorneys, accountants, consultants, agents, advisors and representatives of such Person.
“Sanctioned Country” means any country or region that is (or the government of which is) or has been in the last five years the subject or target of a comprehensive embargo under Sanctions Laws (including Cuba, Iran, North Korea, Sudan, Syria, Venezuela and the Crimea region of Ukraine).
“Sanctioned Person” means any individual or entity that is the subject or target of sanctions or restrictions under Sanctions Laws or Ex-Im Laws, including: (i) any individual or entity listed on any applicable U.S. or non-U.S. sanctions- or export-related restricted party list, including OFAC’s Specially Designated Nationals and Blocked Persons and the EU Consolidated List; (ii) any entity that is, in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by a person or persons described in clause (i); or (iii) any national of a Sanctioned Country with whom U.S. Persons are prohibited from dealing.
“Sanctions Laws” means all U.S. and non-U.S. laws, regulations, and Orders relating to economic or trade sanctions, including the laws administered or enforced by the United States (including by OFAC or the U.S. Department of State), the United Nations Security Council, and the European Union.
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002, and the rules and regulations promulgated thereunder.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Stockholder Litigation” means any Proceeding (including any class action or derivative litigation) asserted, commenced or threatened by, on behalf of or in the name of, against or otherwise involving the Company, the Company Board, any committee thereof and/or any of the Company’s directors or officers relating directly or indirectly to this Agreement, the Merger or any related transaction (including any such Proceeding (a) based on allegations that the Company’s entry into this Agreement or the terms and conditions of this Agreement or any related transaction constituted a breach of the fiduciary duties of any member of the Company Board, any member of the board of directors of any of the Company’s Subsidiaries or any officer of the Company or any of its Subsidiaries or (b) alleging or asserting any misrepresentation or omission in the Proxy Statement); provided that any Proceeding (x) solely among the parties hereto, (y) solely with any Financing Sources related to this Agreement or (z) involving or arising under any Antitrust Law shall not be considered Stockholder Litigation.
“Subsidiary” means, with respect to any Person, any entity of which fifty percent or more of the combined total voting power of the outstanding voting securities are directly or indirectly owned by such Person or any other Person in which such Person, directly or indirectly, has at least a majority ownership and the power to direct the policies, management and affairs thereof.
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“Superior Proposal” means any bona fide written Acquisition Proposal that the Company Board or any committee thereof has determined in good faith (after consultation with a Company Financial Advisor and outside legal counsel), taking into account, among other things, all legal, financial, regulatory, and other aspects of the Acquisition Proposal (including certainty of closing) and the identity of the Third Party making the Acquisition Proposal, would, if consummated, result in a transaction that is more favorable from a financial point of view to the Company’s stockholders (in their capacity as such) than the Merger (taking into account any revisions to the terms of this Agreement, the Guarantees and the Financing Commitment Letters proposed by Parent in writing prior to the time of such determination); provided, however, that, for purposes of this definition of “Superior Proposal,” (x) all references in the term “Acquisition Proposal” to “15%” will be deemed to be references to “50%” and (y) all references in the term “Acquisition Proposal” to “85%” will be deemed to be references to “50%”.
“Tax” means any federal, state, local, or foreign tax or other like governmental assessment or charge (including income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, escheat, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax), together with any interest, penalty, addition to tax or additional amount with respect thereto, whether disputed or not.
“Tax Return” means any report, return, document, declaration or other information related to Taxes and filed with or supplied to a Taxing Authority, including amended returns, information returns and any document accompanying payments of estimated Taxes.
“Taxing Authority” means any Governmental Authority responsible for the imposition of any Tax.
“Third Party” means (i) any Person, other than Parent or any of its Affiliates (including the Equity Investors) or Representatives or (ii) any “group” (as defined under Section 13(d) of the Exchange Act) of Persons, other than a group including Parent or any of its Affiliates (including the Equity Investors) or Representatives.
“TIBCO Credit Agreement” means (i) that certain Senior Secured Credit Agreement, dated as of December 5, 2014 (as amended, restated, amended and restated, supplemented and otherwise modified from time to time prior to the Closing Date), by and among, inter alios, Balboa Intermediate Holdings LLC, a Delaware limited liability company, TIBCO, the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as the administrative agent, and (ii) that certain Senior Secured Second Lien Credit Agreement, dated as of March 4, 2020 (as amended, restated, amended and restated, supplemented and otherwise modified from time to time prior to the Closing Date, by and among, inter alios, Balboa Intermediate Holdings LLC, a Delaware limited liability company, TIBCO, the lenders from time to time party thereto and KKR Loan Administration Services LLC, as the administrative agent and collateral agent.
“TIBCO Parents” means collectively, Bali Holdco LLC, a Delaware limited liability company, and Balboa Intermediate Holdings LLC, a Delaware limited liability company.
“TIBCO Payoff Letters” means, with respect to each of the TIBCO Credit Agreements, a payoff letter executed by the lenders or other creditors thereunder (or their duly authorized agent or representative), in each case, which shall be in form and substance reasonably satisfactory to the Company.
“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of Treasury and the Internal Revenue Service.
“Trustee” means Wilmington Trust, National Association.
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“U.S. Employee Plan” means any Company Employee Plan that is maintained pursuant to or is subject to the laws of the United States.
“Willful and Material Breach” means a material breach that is the consequence of an intentional act or intentional omission by the breaching party with the actual knowledge that the taking of such act or failure to take such act would cause or constitute such material breach.
(b) Each of the following terms is defined in the Section set forth opposite such term:
| Term | Section | |
| Adverse Effect on Financing | 6.17(a) | |
| Adverse Recommendation Change | 6.03(a) | |
| Agreement | Preamble | |
| Alternative Acquisition Agreement | 6.03(a) | |
| Alternative Financing | 6.17(b) | |
| Anti-Corruption Laws | 4.13(a) | |
| Business Systems | 4.20(i) | |
| Capitalization Date | 4.05(a) | |
| Certificate of Merger | 2.02(a) | |
| Certificates | 2.04(b) | |
| Closing | 2.01 | |
| Company | Preamble | |
| Company Common Stock | 4.05(a) | |
| Company Intellectual Property | 4.20(k)(i) | |
| Company Leased Real Property | 4.21(b) | |
| Company Note Offers and Consent Solicitations | 6.20(c) | |
| Company Owned Real Property | 4.21(a) | |
| Company Preferred Stock | 4.05(a) | |
| Company Products | 4.20(k)(ii) | |
| Company Recommendation | 4.02(b) | |
| Company SEC Documents | 4.07(a) | |
| Company Securities | 4.05(c) | |
| Company Subsidiary Documents | 4.06(c) | |
| Confidentiality Agreement | 6.18 | |
| Consent Solicitations | 6.20(c) | |
| Continuing Employee | 6.07(a) | |
| Converted Cash Award | 2.06(b) | |
| Copyrights | 4.20(k)(ii)(C) | |
| Credit Agreement Termination | 6.20(a) | |
| Debt Commitment Letter | 5.08 | |
| Debt Financing | 5.08 | |
| Delaware Courts | 9.07 | |
| DGCL | Recitals | |
| Dissenting Company Shares | 2.05 | |
| Divestiture Action | 6.12(d) | |
| DOJ | 6.12(b) | |
| DSU Award Payments | 2.06(c) | |
| Effective Time | 2.02(b) | |
| End Date | 8.01(b) | |
| Equity Commitment Letter | Recitals | |
| Equity Financing | 5.08 |
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| Term | Section | |
| Equity Investors | Recitals | |
| Excluded Information | 6.17(c) | |
| Final Exercise Date | 2.06(f) | |
| Financing | 5.08 | |
| Financing Commitment Letters | 5.08 | |
| Financing Indemnitees | 6.17(e) | |
| Financing Purposes | 5.08 | |
| Financing Source Related Parties | 9.15 | |
| FTC | 6.12(b) | |
| Guarantees | Recitals | |
| Guarantor | Recitals | |
| Indemnified Party | 6.11(b) | |
| Indemnified Party Proceeding | 6.11(b) | |
| Intellectual Property | 4.20(k)(ii) | |
| Interim Period | 6.01(a) | |
| Intervening Event | 6.03(b)(i) | |
| Labor Agreement | 4.14(a)(xiii) | |
| Marks | 4.20(k)(ii)(B) | |
| Material Contract | 4.14(b) | |
| Maximum Premium | 6.11(a) | |
| Merger | Recitals | |
| Merger Consideration | 2.03(a) | |
| Merger Sub | Preamble | |
| Notice of Intervening Event | 6.03(b)(iii)(A) | |
| Notice of Superior Proposal | 6.03(b)(ii)(B) | |
| Offers to Exchange | 6.20(c) | |
| Offers to Purchase | 6.20(c) | |
| Open Source Software | 4.20(k)(iv) | |
| Option Cash Amount | 2.06(a) | |
| Owned Company Shares | 2.03(b) | |
| Parent | Preamble | |
| Parent Benefit Plans | 6.07(b) | |
| Parent Cost Exceptions | 6.17(c) | |
| Parent Expenses | 9.04(c) | |
| Parent Liability Limitation | 9.04(d)(i) | |
| Parent Related Parties | 9.04(d)(i) | |
| Patents | 4.20(k)(iii)(A) | |
| Payment Agent | 2.04(a) | |
| Payment Fund | 2.04(a) | |
| Preferred Equity Commitment Letter | 5.08 | |
| Preferred Equity Financing | 5.08 | |
| Preferred Equity Financing Sources | 5.08 | |
| Preferred Equity Issuer | 5.08 | |
| Providing Financing Documentation Requirement | 6.17(c) | |
| Proxy Statement | 6.04(b) | |
| Real Property | 4.21(b) | |
| Recovery Costs | 9.04(b) | |
| Solvent | 5.09 | |
| Specific Performance Conditions | 9.09(a) | |
| Stockholder Approval | 4.02(c) |
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| Term | Section | |
| Stockholder Meeting | 6.04(a) | |
| Surviving Corporation | 2.02(c) | |
| Third Party Rights | 4.20(d) | |
| Trade Control Laws | 4.13(b) | |
| Trade Secrets | 4.20(k)(iii)(D) | |
| Uncertificated Shares | 2.04(b) | |
| Voting and Support Agreement | Recitals | |
| WARN Act | 4.17(a) |
Section 1.02 Other Definitional and Interpretative Provisions. The words “hereof,” “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular defined term in this Agreement shall be deemed to include the plural, and any plural defined term the singular. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and does not simply mean “if.” “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to “executive officer” shall refer to such term as defined in Rule 3b-7 under the Exchange Act. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that such amendments, modifications or supplements were either Made Available to the other party prior to the date hereof or entered into or otherwise effected after the date hereof as permitted by the terms of this Agreement. References to any Person include the successors and permitted assigns of that Person. References to any statute are to that statute and to the rules and regulations promulgated thereunder, in each case as amended from time to time. References to “$” and “dollars” are to the currency of the United States. References from or through any date shall mean, unless otherwise specified, from and including or through and including, respectively. Accounting terms used, but not specifically defined, in this Agreement shall be construed in accordance with GAAP as applied by the Company.
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