REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub (and, with respect to Sections 5.01, 5.02, 5.05, 5.07 and 5.08(b), TIBCO) represent and warrant to the Company that:
Section 5.01 Corporate Existence and Power. Each of Parent, TIBCO and Merger Sub is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has all requisite power and authority necessary to enable each to own, lease and operate its properties and to carry on its business as now conducted and to consummate the transactions contemplated by this Agreement. None of Parent, TIBCO or Merger Sub is in violation of its certificate of incorporation, bylaws or other similar organizational document.
Section 5.02 Corporate Authorization. Each of Parent, TIBCO and Merger Sub has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement to be performed by such party. The execution and delivery by Parent, TIBCO and Merger Sub of this Agreement and the consummation by Parent, TIBCO and Merger Sub of the transactions contemplated by this Agreement to be performed by such party have been duly authorized by all necessary corporate action on the part of Parent, TIBCO and Merger Sub. Assuming due authorization, execution and delivery of this Agreement by the Company, this Agreement constitutes a valid and binding agreement of each of Parent, TIBCO and Merger Sub, enforceable against each such Person in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity.
Section 5.03 Governmental Authorization.
(a) The execution, delivery and performance by Parent and Merger Sub of this Agreement and the consummation by Parent and Merger Sub of the transactions contemplated by this Agreement require no action by or in respect of, or filing with, any Governmental Authority, other than (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of other states in which Parent is qualified to do business, (ii) compliance with any applicable requirements of (x) the HSR Act, (y) any other Antitrust Laws and (z) any applicable foreign investment regulations overseen by a relevant Governmental Authority, (iii) compliance with any applicable requirements of the Securities Act, the Exchange Act and any other U.S. state or federal securities laws, and (iv) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(b) The transactions contemplated by this Agreement will not result in foreign control (as defined in 31 C.F.R. § 800.208) of the Company and does not constitute direct or indirect investment in the Company by any foreign person (as defined in 31 C.F.R. § 800.224) that affords the foreign person with any of the access, rights or involvement contemplated under 31 C.F.R. § 800.211(b).
Section 5.04 Non-contravention. The execution, delivery and performance by each of Parent and Merger Sub of this Agreement and the consummation by each of Parent and Merger Sub of the transactions contemplated by this Agreement do not and will not (with or without notice or lapse of time, or both) (a) conflict with or result in any violation or breach of any provision of the certificate of incorporation or bylaws (or similar governing documents) of Parent or the certificate of incorporation or bylaws of Merger Sub, (b) assuming compliance with the matters referred to in Section 5.03(a), result in a violation or breach of any provision of any Applicable Law, or (c) require any consent or approval under, violate, result in any breach of or default under, result in the acceleration of any obligation under, or result in termination or give to others any right of termination of, any Contract to which Parent, Merger Sub or any other Subsidiary of Parent is a party, or by which any of their respective properties or assets are bound, with such exceptions, in the case of each of clauses (b) and (c) above, as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
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Section 5.05 Capitalization; Operation of Merger Sub. All of the outstanding equity interests of each of Parent and Merger Sub have been duly authorized and validly issued. All of the issued and outstanding equity interests of Parent are owned by TIBCO, free and clear of any Liens. All of the issued and outstanding equity interests of Merger Sub are, and at the Closing Date will be, owned, directly or indirectly, by Parent, free and clear of all Liens. Merger Sub has been formed solely for the purpose of engaging in the transactions contemplated by this Agreement and prior to the Closing Date will have engaged in no other business activities and will have incurred no liabilities or obligations other than as contemplated by this Agreement.
Section 5.06 No Vote of Parent Stockholders; Required Approval. No vote or consent of the holders of any class or series of capital stock of Parent or any of its Subsidiaries (other than Merger Sub) or the holders of any other securities of Parent or such Subsidiaries (equity or otherwise) is necessary to adopt this Agreement or to approve the Merger or the other transactions contemplated by this Agreement. The vote or consent of Parent as the sole stockholder of Merger Sub is the only vote or consent of the holders of any class or series of capital stock of Merger Sub necessary to approve the Merger and adopt this Agreement, which consent shall be given immediately following the execution of this Agreement.
Section 5.07 Litigation. As of the date hereof, there is no Proceeding pending, or, to the knowledge of Parent or TIBCO, threatened in writing, that would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Neither Parent, TIBCO nor Merger Sub is subject to any Order that would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(a) Parent has delivered to the Company true, correct and complete copies, as of the date hereof, of (i) the fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”), (ii) the fully executed preferred equity commitment letter, dated as of the date hereof (together with all exhibits, schedules, and annexes thereto) (the “Preferred Equity Commitment Letter”), between a direct or indirect parent of Parent (the “Preferred Equity Issuer”) and the financing sources party thereto (the “Preferred Equity Financing Sources”, which, for the avoidance of doubt, such term excludes TIBCO, Parent, Merger Sub, the Preferred Equity Issuer and their respective Affiliates), pursuant to which such Preferred Equity Financing Sources have committed, on the terms and subject only to the conditions expressly set forth therein, to provide the commitments and preferred equity financing set forth therein (the “Preferred Equity Financing”) and (iii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and (subject to customary redactions of fee amounts, pricing and “flex” provisions, so long as such redaction does not cover terms that could affect the conditionality, amount, availability or termination of the Debt Financing) fee letter from the financial institutions and Debt Financing Sources identified therein (collectively in this clause (iii), the “Debt Commitment Letter” and, together with the Equity Commitment Letter and the Preferred Equity Commitment Letter, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein (being collectively referred to as the “Debt Financing” and, together with the Equity Financing and the Preferred Equity Financing, the “Financing”). As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, modification or waiver is contemplated by TIBCO, Parent, Merger Sub or the Preferred Equity Issuer or, to the knowledge of TIBCO, Parent and Merger Sub, by any other Person. TIBCO, Parent, Merger Sub and the Preferred Equity Issuer have fully paid any and all commitment fees, other fees and other amounts in connection with the Financing Commitment Letters, in each case, required to be paid as of the date hereof. Assuming the Financing is funded in accordance with the Financing Commitment Letters, as applicable, the net cash proceeds contemplated by the Financing Commitment Letters (both before and after giving effect to any “flex” provisions contained in the Debt Commitment Letter) together with unrestricted and immediately available cash on hand at Parent and TIBCO at the Effective Time will, in the aggregate be sufficient for TIBCO, Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid by TIBCO, Parent, Merger Sub and/or the
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Preferred Equity Issuer (and/or any other party under the Financing Commitment Letters) in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt contemplated by this Agreement the Preferred Equity Commitment Letter or the Debt Commitment Letter, to pay any other amounts required to be paid in connection with the consummation of the transactions contemplated by this Agreement and to pay all related fees and expenses (collectively, the “Financing Purposes”). The Financing Commitment Letters are, as to TIBCO, Parent, Merger Sub, the Preferred Equity Issuer and, to the knowledge of TIBCO, Parent and Merger Sub, the other parties thereto, enforceable against such Persons in accordance with their terms, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. The Financing Commitment Letters are in full force and effect and, to the knowledge of TIBCO, Parent and Merger Sub, no event has occurred which, with or without notice, lapse of time or both, could (or could reasonably be expected to) constitute a default or breach on the part of TIBCO, Parent, Merger Sub or the Preferred Equity Issuer or any other parties thereto, under any of the Financing Commitment Letters. Assuming satisfaction of the conditions precedent set forth in Sections 7.01, 7.02 and 7.03 hereof and the completion of the Marketing Period, as of the date hereof, none of TIBCO, Parent or Merger Sub has any reason to believe (both before and after giving effect to any “flex” provisions contained in the Debt Commitment Letter) that any of the conditions to the funding of the full amount of the Financing will not be satisfied on a timely basis or that the full amount of the Financing will not be available to Parent, in each case, on the date of the Closing. The Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. The Financing Commitment Letters contain all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Financing (including the full amount of the Preferred Equity Financing) available to Parent on the terms therein. There are no side letters or other agreements, arrangements or understandings to which TIBCO, Parent, Merger Sub, the Preferred Equity Issuer or any of their respective Affiliates is a party that could reasonably be expected to have an Adverse Effect on Financing. As of the date hereof, none of TIBCO, Parent or Merger Sub has any reason to believe that any of the conditions to the Financing will not be satisfied by Closing or that the Financing will not be available to Parent on the date on which the Closing should occur pursuant to Section 2.01. The obligations of TIBCO, Parent and Merger Sub under this Agreement are not subject to any conditions regarding TIBCO’s, Parent’s, Merger Sub’s, the Preferred Equity Issuer’s, their respective Affiliates’ or any other Person’s (including, for the avoidance of doubt, the Company’s or any Subsidiary of the Company’s) ability to obtain the Financing or any other financing.
(b) Each of Parent and TIBCO has all requisite power and authority to perform its respective obligations under, and consummate the transactions contemplated by, the Financing Commitment Letters applicable thereto. The performance by each of Parent and TIBCO of its respective obligations under, and consummation of the transactions contemplated by, the Financing Commitment Letters do not and will not (with or without notice or lapse of time, or both) (a) conflict with or result in any violation or breach of any provision of the certificate of incorporation or bylaws (or similar governing documents) of such entity, (b) result in a violation or breach of any provision of any Applicable Law, or (c) require any consent or approval under, violate, result in any breach of or default under, result in the acceleration of any obligation under, or result in termination or give to others any right of termination of, any Contract (other than the TIBCO Credit Agreements) to which such entity is a party, or by which any of such entity’s properties or assets are bound, with such exceptions, in the case of each of clauses (b) and (c) above, as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Section 5.09 Solvency. Each of TIBCO Parents, TIBCO, Parent, Merger Sub, the Surviving Corporation, the Preferred Equity Issuer and their respective Subsidiaries will be Solvent as of the Effective Time and immediately after the consummation of the transactions contemplated by this Agreement and any debt financing (including the Debt Financing and Preferred Equity Financing) occurring in connection therewith. No transfer of property is being made by TIBCO Parents, TIBCO, Parent, Merger Sub, the Surviving Corporation, the Preferred Equity Issuer or any their respective Subsidiaries (or is contemplated being made) and no obligation is being incurred (or is contemplated being incurred) by TIBCO Parents, TIBCO, Parent, Merger Sub, the Surviving
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Corporation, the Preferred Equity Issuer or any of their respective Subsidiaries in connection with the transactions contemplated by this Agreement (or any series of related transactions or any other transactions in close proximity with the transactions contemplated by this Agreement) (a) with the intent to hinder, delay or defraud either present or future creditors of TIBCO Parents, TIBCO, the Surviving Corporation, Parent, Merger Sub, the Preferred Equity Issuer, any Affiliate of Parent or any of their respective Subsidiaries, (b) that could reasonably be expected to render TIBCO Parents, TIBCO, the Surviving Corporation, Parent, Merger Sub, the Preferred Equity Issuer, any Affiliate of Parent or any of their respective Subsidiaries not Solvent (or in the zone of insolvency) or (c) that as of the date hereof, is reasonably expected to have a material adverse effect on the long term financial sustainability of TIBCO Parents, TIBCO, the Surviving Corporation, Parent, Merger Sub, the Preferred Equity Issuer and their respective Subsidiaries. For purposes of this Agreement, the term “Solvent” when used with respect to any Person, means that, as of any date of determination (x) the amount of the “fair saleable value” of the assets and property of such Person, in each case, will, as of such date, exceed (i) the value of all “liabilities of such Person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with Applicable Laws governing determinations of the insolvency of debtors, and (ii) the amount that will be required to pay the probable liabilities of such Person on its existing debts (including contingent and other liabilities) as such debts become absolute and mature, (y) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date, and (z) such Person will be able to pay its liabilities, including contingent, subordinated and other liabilities, as they mature. For purposes of this definition, “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, including contingent (it being understood that the amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability), subordinated and other liabilities, as they mature” means that such Person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations as they become due.
Section 5.10 Guarantees. Parent has furnished the Company with a duly executed, true, complete and correct copy of each Guarantee. Each Guarantee is in full force and effect. Each Guarantee is (i) a legal, valid and binding obligation of the respective Guarantor and (ii) enforceable in accordance with its respective terms against such Guarantor. There is no breach or default under any Guarantee by any Guarantor, and no event has occurred that would constitute a breach or default (or with notice or lapse of time or both would constitute a breach or default) thereunder by any Guarantor.
Section 5.11 Absence of Certain Agreements. As of the date hereof, there are no agreements, arrangements or understandings (in each case, whether oral or written) between Parent, Merger Sub, any Equity Investor, any Guarantor or any of their respective Affiliates, on the one hand, and any member of the Company’s management or directors, on the other hand, that relate in any way to, or are in connection with, the transactions contemplated by this Agreement, including (A) any retention, severance or other compensation, incentives or benefits that may be or become payable in connection with the transactions contemplated hereby or after the Effective Time, (B) any equity rollover or other similar transaction, or any equity or other investment in Parent, the Surviving Corporation or any parent company thereof, or any Affiliate of Parent, the Surviving Corporation or any parent company thereof, following the Effective Time or (C) any directorship, employment, consulting arrangement or other similar association with Parent, the Surviving Corporation or any parent company thereof, or Affiliate of Parent, the Surviving Corporation or any parent company thereof, from and after the Effective Time.
Section 5.12 Stock Ownership. None of Parent, Merger Sub, the Equity Investors nor any of their respective “affiliates” or “associates” is, or at any time during the last three years has been, an “interested stockholder” of the Company, in each case as defined in Section 203 of the DGCL.
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Section 5.13 Brokers’ Fees. There is no investment banker, broker, finder or other agent or intermediary that has been retained by or is authorized to act on behalf of Parent or any of its Subsidiaries, Affiliates, or any of their respective officers or directors in their capacities as officers or directors, who is entitled to any advisory, banking, broker’s, finder’s or similar fee or commission in connection with the Merger and the other transactions contemplated by this Agreement, except for Persons whose fees and expenses shall be paid by Parent.
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