COVENANTS
Section 6.01 Conduct of the Company.
(a) Except for matters (i) expressly required, permitted or contemplated by this Agreement, (ii) set forth in Section 6.01 of the Company Disclosure Schedule, (iii) required by Applicable Law or the rules or regulations of Nasdaq, or (iv) undertaken with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), from the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to Section 8.01 (the “Interim Period”), the Company shall, and shall cause each of its Subsidiaries to, use its commercially reasonable efforts to (x) conduct its business in all material respects in the ordinary course, consistent with past practice, and (y) to preserve intact its present business organization and material business relationships (including its relationships with customers, suppliers, distributors, licensors, licensees and other Persons with which it has significant business dealings); provided that, in each case, the Company and its Subsidiaries may continue any necessary or advisable changes in their respective business practices adopted prior to the date hereof in response to COVID-19 and any COVID-19 Measures and, after the date hereof, may take further actions in good faith that are reasonably required to respond to COVID-19 or any COVID-19 Measures.
(b) Without limiting the generality of the foregoing, except for matters (i) permitted or contemplated by this Agreement, (ii) set forth in Section 6.01 of the Company Disclosure Schedule, (iii) required by Applicable Law or the rules or regulations of Nasdaq, or (iv) undertaken with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), during the Interim Period, the Company shall not, and shall cause each of its Subsidiaries not to:
(i) amend the Company’s certificate of incorporation or bylaws, or amend any certificate of incorporation or bylaws, or other comparable charter or organizational documents, of the Company’s Subsidiaries;
(ii) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, or enter into any agreement with respect to the voting of, any capital stock of the Company or any of its Subsidiaries, other than dividends and distributions by a direct or indirect wholly-owned Subsidiary of the Company;
(iii) (A) adjust, split, combine or reclassify any capital stock of the Company or any of its Subsidiaries, (B) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of capital stock of the Company or any of its Subsidiaries, or (C) purchase, redeem or otherwise acquire any Company Securities, except for acquisitions of shares of Company Common Stock by the Company in satisfaction by holders of Company Equity Awards of the applicable exercise price and/or withholding taxes or in accordance with the terms of the Company Stock Plans or the ESPP;
(iv) issue, deliver, sell or grant any Company Securities, other than (A) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options or pursuant to the terms of Company DSU Awards, Company RSU Awards or Company PRSU Awards that are outstanding on the date hereof or issued not in violation of this Agreement, in each case in accordance with the applicable terms of such Company Equity Award, (B) grants of Company Equity Awards described in Section 6.01(b)(iv) of the Company Disclosure Schedule, (C) grants or awards of Company Securities required to be made pursuant to the terms of existing employment or other compensation agreements or arrangements in effect as of the date hereof as set forth in Section 6.01(b)(iv) of the Company Disclosure Schedule, or (D) the issuance of shares of Company Common Stock in accordance with the ESPP (and subject to Section 2.06(f));
(v) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, consolidation, restructuring or recapitalization or other reorganization of the Company or any of its Subsidiaries;
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(vi) (A) increase or decrease the salary or wages, benefits, bonuses or other compensation payable, or to become payable, to the Company’s current or former directors, employees or other individual service providers with a title of Director or above or with annual targeted base salary of $300,000 or more, (B) pay or award, or commit to pay or award, any new bonuses or cash incentive compensation to the Company’s current or former directors, employees or other individual service providers with a title of Director or above or with targeted base salary of $300,000 or more, (C) grant any severance or termination pay to any of the Company’s current or former directors, employees or other individual service providers with a title of Director or above or with targeted base salary of $300,000 or more, or (D) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any of the Company’s current or former directors, employees or other individual service providers with a title of Director or above or with targeted base salary of $300,000 or more, except, in the case of each of clauses (A) through (D), (1) as required to be made pursuant to the terms of any Labor Agreements as in effect as of the date hereof and (2) as required under the terms of any Company Employee Plan as in effect on the date hereof;
(vii) adopt, terminate or amend any material Company Employee Plan or any other benefit or compensation plan, policy or arrangement that would be a material Company Employee Plan if in effect on the date hereof, except (A) as required by Applicable Law, (B) as required under the terms of any Company Employee Plan as in effect on the date hereof or adopted, amended or modified as expressly permitted by this Agreement, or (C) for annual renewals of benefit plans undertaken in the ordinary course of business and consistent with past practice;
(viii) (A) negotiate, modify, extend, terminate, or enter into any Labor Agreement, or (B) voluntarily recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees of the Company or any Subsidiary of the Company;
(ix) implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other such actions that would reasonably be expected to trigger notice requirements under the WARN Act;
(x) hire, engage, terminate (without cause), furlough, or temporarily layoff any employee with a title of Director or above or with annual targeted base salary of $300,000 or more;
(xi) affirmatively waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation of any current or former employee or independent contractor;
(xii) acquire any business, assets or capital stock of any Person or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise), other than one or more acquisitions in the ordinary course of business that, individually or in the aggregate, involve a purchase price of not more than $500,000;
(xiii) sell, lease, license, sublicense, pledge, transfer, assign, abandon, subject to any Lien or otherwise dispose of, or fail to preserve and maintain, any Company Intellectual Property, material assets or material properties except (A) pursuant to Contracts existing as of the date hereof, (B) non-exclusive licenses and sublicenses of Company Intellectual Property to customers, contractors, Distribution Partners, technology and other partners or suppliers of the Company and its Subsidiaries in the ordinary course of business consistent with past practice, (C) sales of inventory or obsolete equipment in the ordinary course of business consistent with past practice or (D) Permitted Liens;
(xiv) disclose or fail to preserve and maintain any Trade Secrets included in the Company Intellectual Property to any third party other than pursuant to written confidentiality obligations;
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(xv) agree to any covenant limiting the ability of the Company or any of its Subsidiaries to compete or engage in any line of business or to compete with any Person in any geographic area, in each case that is material to the Company and its Subsidiaries taken as a whole;
(xvi) change any of the accounting methods used by the Company materially affecting its assets, liabilities or business, except for such changes that are required by GAAP or Regulation S-X promulgated under the Exchange Act or as otherwise specifically disclosed in the Company’s reports filed with the SEC;
(xvii) (A) make or change any material Tax election, (B) change any material accounting method for Tax purposes, (C) surrender any right to claim a material Tax refund, (D) enter into any closing agreement related to any material Taxes, (E) settle any material Tax claim or assessment, or (F) except in the ordinary course of business, amend any material Tax Return or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment;
(xviii) incur or commit to any capital expenditures that in the aggregate exceeds, in any given fiscal quarter, $500,000 that are not contemplated in the Company’s annual budget as included in Section 6.01(b)(xviii) of the Company Disclosure Schedule;
(xix) (A) enter into any Contract that, if in existence as of the date hereof, would be a Material Contract other than Contracts with end-user customers or Distribution Partners in the ordinary course of business or as permitted under Sections 6.01(b)(vi), (vii), (viii), (xii), (xiii), (xviii), (xx) or (xxi), or (B) modify, amend, terminate or grant a waiver or release under any Material Contract in a manner that would be adverse to the Company or its Subsidiaries in any material respect;
(xx) settle or compromise any pending or threatened Proceeding, or pay, discharge, or satisfy or agree to pay, discharge or satisfy any claim with respect to any Proceeding, other than the settlement, compromise, payment, discharge or satisfaction of Proceedings providing solely for the payment of monetary damages which are (i) reflected or reserved against in full in the Company Balance Sheet or (ii) covered in full by existing insurance policies or (iii) less than $500,000 individually or $2,500,000 in the aggregate;
(xxi) except for (x) borrowings under the Company’s current credit facilities in the ordinary course of business, (y) interest rate and currency swaps and hedging arrangements in the ordinary course of business, and (z) intercompany loans between the Company and any of its wholly-owned Subsidiaries or between any wholly-owned Subsidiaries of the Company, (A) incur, issue, or otherwise become liable for additional Indebtedness in excess of $1,000,000 in the aggregate, (B) modify the terms of any material Indebtedness existing as of the date hereof, or (C) assume, guarantee or endorse the obligations of any Person (other than a wholly-owned Subsidiary of the Company); or
(xxii) authorize, commit or agree to take any of the foregoing actions.
Notwithstanding the foregoing, nothing contained in this Agreement shall give to Parent or Merger Sub, directly or indirectly, rights to control or direct the operations of the Company and its Subsidiaries prior to the Effective Time, and the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective operations prior to the Effective Time. In addition, notwithstanding the foregoing, nothing in this Section 6.01 shall restrict the Company and its Subsidiaries from, or require the consent of Parent prior to, engaging in any transaction or entering into any agreement exclusively among the Company and its Subsidiaries.
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Section 6.02 Unsolicited Proposals.
(a) Subject to Section 6.03(b) and Section 6.03(c) and except as expressly permitted by this Section 6.02 from the date of this Agreement until the earlier to occur of the Effective Time or the termination of this Agreement pursuant to Section 8.01:
(i) the Company shall not, shall cause its Subsidiaries and its and their respective directors, officers and employees not to, and shall instruct and use reasonable best efforts to cause each of its other Representatives not to, directly or indirectly (other than with respect to Parent and Merger Sub), (A) solicit, initiate, propose, assist, knowingly facilitate, or knowingly encourage any inquiries, proposals or offers that constitute, or that could reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries, in each case for the purpose of encouraging or facilitating the making, submission or announcement of any proposal or inquiry that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, or (C) enter into any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement or such other permitted confidentiality agreement pursuant to this Section 6.02) or enter into any agreement requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement or (D) approve, endorse or recommend any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; and
(ii) the Company shall, and shall cause its Subsidiaries and its and their respective officers and directors, and shall instruct and use reasonable best efforts to cause each of its other Representatives to, immediately cease and terminate any discussions or negotiations with any Third Party that would be prohibited by this Section 6.02(a) and, within forty-eight hours following the execution of this Agreement the Company shall request that all non-public information previously provided by or on behalf of the Company or any of its Subsidiaries to any Third Party with whom a confidentiality agreement was entered into during the twelve-month period immediately preceding the date hereof relating to a potential Acquisition Proposal be promptly returned or destroyed in accordance with the terms of such confidentiality agreement and will (x) cease providing any further information with respect to the Company, its Subsidiaries, or any Acquisition Proposal to any such Third Party or its Representatives and (y) immediately terminate all access granted to any such Third Party and its Representatives to any physical or electronic data room.
(b) Notwithstanding anything to the contrary contained in this Agreement, if, at any time on or after the date hereof, but prior to obtaining the Stockholder Approval, (i) the Company receives a written Acquisition Proposal from a Third Party, (ii) such Acquisition Proposal did not result from a material breach of Section 6.02(a) and (iii) the Company Board or any committee thereof has determined in good faith, after consultation with a Company Financial Advisor and outside legal counsel, that (x) such Acquisition Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal and (y) the failure to take the actions contemplated by this Section 6.02(b) would be inconsistent with its fiduciary duties pursuant to Applicable Law, then the Company may (A) furnish information and data with respect to the Company and its Subsidiaries to the Third Party making such Acquisition Proposal (and its Representatives, including potential financing sources of such Third Party), in each case pursuant to an Acceptable Confidentiality Agreement and (B) enter into, maintain and participate in discussions or negotiations with the Third Party making such Acquisition Proposal (and its Representatives, including potential financing sources of such Third Party) regarding such Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such discussions or negotiations (including by entering into a customary confidentiality agreement with such Third Party for the purpose of receiving non-public information relating to such Third Party); provided, however, that the Company (1) will not, and will not permit its Subsidiaries or its or their Representatives to, furnish any non-public information except pursuant to an Acceptable Confidentiality Agreement and (2) will substantially concurrently provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such Third Party, which was not previously provided to Parent. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may direct any Persons to this Agreement, including the specific provisions of this Section 6.02.
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(c) From and after the date hereof, the Company shall as promptly as practicable (and in any event within twenty-four hours) notify Parent of the Company’s receipt of any Acquisition Proposal, which notification shall include a copy of the applicable written Acquisition Proposal (or, if oral, the material terms and conditions of such Acquisition Proposal) and the identity of the Third Party making such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a prompt and current basis of the status of any developments, discussions or negotiations regarding any such Acquisition Proposal, and the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto), including by providing a copy of all documentation relating thereto that is exchanged between the Third Party (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) within twenty-four hours after the Company’s receipt or sending thereof.
(d) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver or termination of any provision of, any standstill or similar provision of any agreement to which any of the Company or any Subsidiary of the Company is a party, other than to the extent that the Company Board or any committee thereof determines in good faith, after consultation with outside legal counsel, that failure to provide such waiver, release or termination would reasonably be expected to be inconsistent with its fiduciary duties under Applicable Law.
Section 6.03 Company Recommendation.
(a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withhold, withdraw, amend, qualify or modify, or publicly propose to withhold, withdraw, amend, qualify or modify, in any manner adverse to Parent or Merger Sub, the Company Recommendation, (B) adopt, approve, endorse, recommend or declare advisable, or publicly propose to adopt, approve, endorse, recommend or declare advisable, an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of Company Common Stock within ten Business Days after commencement of such offer pursuant to Rule 14d-2 of the Exchange Act or (y) issue a public press release within ten Business Days following the first public announcement of any Acquisition Proposal by a Third Party (other than by commencement of a tender or exchange offer) reaffirming the Company Recommendation, (D) fail to publicly reaffirm the Company Recommendation within ten Business Days after Parent so requests in writing (it being understood that the Company will have no obligation to make such reaffirmation on more than three separate occasions), (E) fail to include the Company Recommendation in the Proxy Statement, (F) take any formal action or make any recommendation or public statement in connection with a tender or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board (or a committee thereof) to the Company stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication) (it being understood that the Company Board (or a committee thereof) may refrain from taking a position with respect to an Acquisition Proposal that is a tender offer or exchange offer until the close of business on the 10th Business Day after the commencement of a tender or exchange offer in connection with such Acquisition Proposal without such action being considered a violation of this Section 6.03) or (G) resolve or publicly propose to take any action described in the foregoing clauses (A) through (F) (each of the foregoing actions described in clauses (A) through (G) being referred to as an “Adverse Recommendation Change”) or (ii) cause or permit the Company or any Subsidiary of the Company to execute or enter into, any letter of intent, memorandum of understanding, merger agreement, acquisition agreement, or other contract or agreement with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement, or such other permitted confidentiality agreement, pursuant to Section 6.02) (each, an “Alternative Acquisition Agreement”).
(b) (i) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Stockholder Approval, the Company Board or any committee thereof may, if it determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), that the failure to do so would be inconsistent with its fiduciary duties under Applicable Law, (A) (1) make an Adverse Recommendation Change in response to a Superior Proposal or (2) make an Adverse Recommendation Change of the type described in
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clauses (A), (D), or (E) (or the type described in clause (G) with respect to clause (A), (D) or (E)) in response to any positive material event, change or development with respect to the Company or any of its Subsidiaries that was not known to or reasonably foreseeable by the Company Board as of the date hereof and not relating to (x) any Acquisition Proposal or (y) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (y) may be taken into account) (each such event, change or development, an “Intervening Event”), subject in each case to compliance with the terms of paragraph (ii) or (iii) below, as applicable.
(ii) In the case of a Superior Proposal, no Adverse Recommendation Change pursuant to this Section 6.03(b) and/or termination of this Agreement pursuant to Section 8.01(h) may be made:
(A) unless the Company and its Representatives have complied in all material respects with their obligations pursuant to Section 6.02 with respect to such Acquisition Proposal;
(B) until after the fourth Business Day following written notice from the Company to Parent advising Parent that the Company Board (1) has received a bona fide Acquisition Proposal that has not been withdrawn, (2) concluded (in accordance with Section 6.03(b)(i)) that such Acquisition Proposal constitutes a Superior Proposal and (3) intends to resolve to effect an Adverse Recommendation Change and/or terminate this Agreement pursuant to Section 8.01(h) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including the material terms and conditions of, and the identity of the Third Party making, such Superior Proposal, and copies of all other relevant transaction documents (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Superior Proposal, which shall require a new notice period of two Business Days, and compliance with this Section 6.03(b) with respect to such new notice);
(C) unless during such four Business Day period (or two Business Day period following an amended proposal), the Company shall, and shall cause its Representatives to, if requested by Parent, (1) negotiate with Parent and its Representatives in good faith to make amendments to the terms and conditions of this Agreement, the Guarantees and the Financing Commitment Letters so that the Acquisition Proposal no longer constitutes a Superior Proposal and (2) permit Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any proposed amendments with respect thereto; provided that this clause (2) shall apply only during the initial four Business Day period; and
(D) unless, following the expiration of such four Business Day period (or two Business Day period following an amended proposal) and after taking into account any amendments proposed in writing by Parent to the terms and conditions of this Agreement, the Guarantees and the Financing Commitment Letters, the Company Board or a committee thereof determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel) that the Acquisition Proposal continues to constitute a Superior Proposal.
(iii) In the case of an Intervening Event, no Adverse Recommendation Change pursuant to this Section 6.03(b) may be made:
(A) until after the fourth Business Day following written notice from the Company to Parent advising Parent that the Company Board or any committee thereof intends to take such action and specifying the facts underlying the determination by the Company Board or a committee thereof that an Intervening Event has occurred, and the reason for the Adverse Recommendation Change, in reasonable detail (a “Notice of Intervening Event”);
(B) unless during such four Business Day period, the Company shall, and shall cause its Representatives to, if requested by Parent, (1) negotiate with Parent and its Representatives in good
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faith to make amendments to the terms and conditions of this Agreement, the Guarantees and the Financing Commitment Letters so that the Company Board (or a committee thereof) no longer determines that the failure to make an Adverse Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to Applicable Law and (2) permit Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any proposed amendments with respect thereto; and
(C) unless, prior to the expiration of such four Business Day period, the Company Board or a committee thereof determines in good faith, taking into consideration any amendments to this Agreement, the Guarantees and the Financing Commitment Letters proposed in writing by Parent (after consultation with a Company Financial Advisor and outside legal counsel), that the failure to effect an Adverse Recommendation Change would be inconsistent with its fiduciary duties under Applicable Law.
(c) Nothing contained in Section 6.02 or this Section 6.03 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any disclosure that constitutes a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) promulgated under the Exchange Act, or (iii) making any disclosure to the Company’s stockholders that is required by Applicable Law or stock exchange rule or listing agreement, which foregoing actions shall not constitute or be deemed to constitute an Adverse Recommendation Change (it being understood that any such statement or disclosure made by the Company Board or any committee thereof pursuant to this Section 6.03(c) must be subject to the terms and conditions of this Agreement and this Section 6.03(c) in no way limits or otherwise affects the obligations of the Company or the Company Board and the rights of Parent under this Agreement and that the foregoing will not be deemed to permit the Company or the Company Board or any committee thereof to effect an Adverse Recommendation Change other than in accordance with Section 6.03(b)).
Section 6.04 Approval of Merger Agreement.
(a) The Company shall, in accordance with Applicable Law and the Company’s governing documents, and in consultation with Parent, take all necessary action to duly set a record date for (and the Company will not change the record date without the prior written consent of Parent, not to be unreasonably withheld, conditioned or delayed), call, give notice of, convene and hold a special meeting of the Company’s stockholders (including any adjournments and postponements thereof, the “Stockholder Meeting”) for the purpose of considering and taking action upon the matters requiring Stockholder Approval (with the Stockholder Meeting in no event being initially scheduled for a date later than the 25th Business Day following the first mailing of the Proxy Statement to the Company’s stockholders) as soon as practicable after the date hereof, and the Company shall, in consultation with Parent, conduct a “broker search” in accordance with Rule 14a-13 of the Exchange Act as soon as practicable after the date hereof to enable such record date to be so set. Without the prior written consent of Parent, and except as may be required by Applicable Law to be voted on by the Company’s stockholders in connection with the adoption of this Agreement, obtaining the Stockholder Approval and a proposal with respect to adjournment of the Stockholder Meeting shall be the only matters which the Company shall propose to be acted on by the Company’s stockholders at the Stockholder Meeting. Notwithstanding anything else to the contrary herein, the Company may postpone or adjourn the Stockholder Meeting (i) with the consent of Parent (not to be unreasonably withheld, conditioned or delayed), (ii) for the absence of a quorum (it being understood that the Company may not postpone or adjourn the Stockholder Meeting more than two times pursuant to this clause (ii) without Parent’s prior consent (not to be unreasonably withheld, conditioned or delayed)), (iii) to ensure that any supplement or amendment to the Proxy Statement required by Applicable Law is provided to the holders of shares of Company Common Stock with a reasonable amount of time in advance of the Stockholder Meeting, (iv) to allow additional time for the solicitation of votes in order to obtain the Stockholder Approval (provided that the Stockholder Meeting shall not be delayed by more than 10 Business Days pursuant to this clause (iv) without the prior consent of Parent) and (v) if the Company is required to postpone or adjourn the Stockholder Meeting by Applicable Law. If requested by Parent, the Company shall postpone or adjourn the
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Stockholder Meeting to allow additional time for the solicitation of votes in order to obtain the Stockholder Approval (provided that the Stockholder Meeting shall not be delayed by more than 10 Business Days pursuant to this sentence unless mutually agreed by Parent and the Company). Unless the Company Board or any committee thereof has withdrawn the Company Recommendation in compliance with Section 6.03, the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of the adoption of this Agreement and take all action necessary or advisable to secure the vote of the holders of shares of Company Common Stock required by Applicable Law to effect the Merger. Unless this Agreement is validly terminated in accordance with Section 8.01, the Company will submit this Agreement for a vote by its stockholders at the Stockholder Meeting even if the Company Board (or a committee thereof) has effected an Adverse Recommendation Change.
(b) As promptly as reasonably practicable (but in no event later than thirty days following the date hereof) after the execution of this Agreement, the Company shall prepare a proxy statement in preliminary form for the Stockholder Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) and file it with the SEC. The Company and Parent shall cooperate with each other in connection with the preparation of the foregoing, including to cause their respective Affiliates, as applicable, to cooperate with the preparation of the foregoing. Subject to Section 6.03, the Company must include the Company Recommendation in the Proxy Statement. The Company shall use commercially reasonable efforts to respond as promptly as reasonably practicable to any comments received from the SEC or its staff concerning the Proxy Statement. The Company shall notify the other parties hereto promptly upon the receipt of any comments or other communications from the SEC or its staff or any other Governmental Authorities and of any request by the SEC or its staff or any other Governmental Authorities for amendments or supplements to the Proxy Statement and shall supply the others with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC, or its staff or any other Governmental Authorities, on the other hand, with respect to the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and Merger Sub shall cooperate, and shall cause their Affiliates and advisors to cooperate, with the Company in connection with the preparation and filing of the Proxy Statement, including promptly furnishing to the Company in writing upon request any and all information relating to Parent, Merger Sub and their respective Affiliates as may be required to be set forth in the Proxy Statement under Applicable Law. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto), or responding to any comments of the SEC with respect thereto, the Company shall provide Parent with a reasonable opportunity to review and comment on such document or response and shall consider Parent’s comments in good faith.
(c) The Company shall ensure that the Proxy Statement (i) will not, on the date it is first mailed to stockholders of the Company and at the time of the Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) will comply in all material respects with the applicable requirements of the Exchange Act. Notwithstanding the foregoing, the Company assumes no responsibility with respect to information supplied by or on behalf of Parent or Merger Sub or their Affiliates for inclusion or incorporation by reference in the Proxy Statement. Parent shall ensure that such information supplied by it and its Affiliates for inclusion in the Proxy Statement will not, on the date it is first mailed to stockholders of the Company and at the time of the Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
(d) If at any time prior to the Stockholder Meeting or any such filing, any information relating to the Company, Parent, Merger Sub or any of their respective Affiliates should be discovered by the Company, on the one hand, or Parent or Merger Sub, on the other hand, that should be set forth in an amendment or supplement to the Proxy Statement, any other required Company filing or any other required Parent filing, as the case may be, so that such filing would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
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which they were made, not misleading, then the party that discovers such information will promptly notify the other, and the parties shall cooperate and the Company shall promptly prepare an appropriate amendment or supplement to such filing describing such information and shall file such amendment or supplement with the SEC and, to the extent required by Applicable Law or the SEC or its staff, disseminate such amendment or supplement to the Company’s stockholders.
(e) Subject to Applicable Law and to the terms of this Agreement, the Company will use its reasonable best efforts to cause the Proxy Statement to be disseminated to the Company’s stockholders as promptly as reasonably practicable following the filing thereof with the SEC and confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, which confirmation will be deemed to occur (absent any change in protocol announced by the SEC) if the SEC has not affirmatively notified the Company on or prior to the tenth calendar day after filing the Proxy Statement that the SEC will be reviewing the Proxy Statement.
Section 6.05 Access to Information. Subject to Applicable Law, Section 6.12, Section 6.18 and applicable contractual restrictions, upon reasonable notice and subject to applicable logistical restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, the Company shall (and shall cause its Subsidiaries to) afford Parent’s officers and Parent’s other Representatives reasonable access, during normal business hours throughout the period prior to the Effective Time, to its properties, personnel, books, Contracts and records. The foregoing shall not require the Company (a) to provide access to or otherwise make available or furnish any information if and to the extent that the provision of such information would in the good faith judgment of the Company based on advice of outside counsel jeopardize any trade secret protection or any attorney-client, work product or other legal privilege or protection (it being agreed that, in the case of clause (a), that the Company shall give notice to Parent of the fact that it is withholding such information or documents and thereafter the Company shall use its commercially reasonable efforts to cause such information to be provided in a manner that would not reasonably be expected to violate such restriction or waive the applicable privilege or protection), (b) to provide access to or otherwise make available or furnish any information relating to the process conducted by the Company that led to the execution of this Agreement (except as may be required by Section 6.02) or (c) to provide access to or otherwise make available or furnish any information if and to the extent that such access or availability would jeopardize the health and safety of any employee of the Company or its Subsidiaries in light of COVID-19 (taking into account any COVID-19 Measures). Notwithstanding anything to the contrary herein, Parent and Merger Sub shall not, and shall use their reasonable best efforts to cause their Representatives not to, initiate contact with any employee of the Company or any of its Subsidiaries not involved in the negotiation of the transactions contemplated by this Agreement or any customer, Distribution Partner, technology or other partner, vendor or supplier of the Company in connection with the Merger or any of the other transactions contemplated by this Agreement, in each case, without the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed); provided, however, that no breach of this sentence shall be taken into account for purposes of determining whether the closing condition set forth in Section 7.03(b) has been satisfied. Any access to the properties of the Company and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing or site assessments.
Section 6.06 Notice of Certain Events. Each of the Company and Parent will give prompt notice to the other (and will subsequently keep the other informed on a reasonably current basis of any material developments related to such notice) upon its becoming aware of the occurrence or existence of any change, event, effect, occurrence or development that (a) with respect to the Company, has had or would reasonably be expected have a Company Material Adverse Effect, (b) with respect to Parent or Merger Sub, has had or would reasonably be expected to have a Parent Material Adverse Effect, and/or (c) is reasonably likely to result in any of the conditions set forth in Article 7 not being able to be satisfied prior to the End Date. No notification given by any party pursuant to this Section 6.06 shall limit or otherwise affect any of the representations, warranties, covenants, obligations or conditions contained in this Agreement.
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Section 6.07 Employee Matters.
(a) As of the Closing Date, the Surviving Corporation or one of its Subsidiaries will continue to employ the employees of the Company and its Subsidiaries as of the Effective Time. For a period of not less than twelve months following the Closing (or, if sooner, until the date of termination of employment of the relevant Continuing Employee), Parent shall provide each employee of the Company or its Subsidiaries who is employed by the Company or its Subsidiaries immediately before the Closing Date and who continues employment with Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation immediately following the Closing Date (each a “Continuing Employee”) with (i) base salary or base hourly rate in an amount at least equal to the level that was provided to each such Continuing Employee prior to the Closing Date and (ii) target incentive compensation (including commissions) in an amount at least equal to the aggregate target cash incentive opportunities that were provided to each such Continuing Employee prior to the Closing Date. Until December 31, 2022 (or, if sooner, until the date of termination of employment of the relevant Continuing Employee), Parent shall provide each Continuing Employee with employee benefits (other than equity awards, defined benefit pension, post-employment welfare and non-qualified deferred compensation or benefits) that are at least as favorable in the aggregate to those provided to each such Continuing Employee immediately prior to the Closing Date under the Company Employee Plans set forth on Schedule 4.16(a) of the Company Disclosure Schedule. In addition, for a period of twelve months following the Closing, Parent shall cause the Surviving Corporation and its respective Subsidiaries to assume and honor, the terms of the Company’s severance guidelines set forth in Section 6.07(a) of the Company Disclosure Schedule and provide the severance payments and benefits required thereunder to any eligible Continuing Employee whose employment is terminated under the circumstances described therein prior to the 12-month anniversary of the Closing.
(b) From and after the Closing Date, Parent shall cause each Continuing Employee’s service with the Company and its Subsidiaries (including any predecessors thereto or any other entities that have been merged with or into or been acquired by the Company or any of its Subsidiaries) prior to the Closing Date to be recognized for purposes of eligibility to participate, future vacation accruals, determining levels of benefits (but for the avoidance of doubt not for benefit accruals under any defined benefit pension plan) and vesting under each compensation, severance, retirement, vacation, paid time off, fringe or other welfare benefit plan, program or arrangement of Parent, the Surviving Corporation or any of their Subsidiaries (excluding any equity compensation plans, programs, agreements or arrangements in which any Continuing Employee is or becomes eligible to participate immediately following the Closing) (collectively, the “Parent Benefit Plans”), but solely to the extent service was credited to such employee for such purposes under a comparable Company Employee Plan immediately prior to the Closing Date; provided that the foregoing shall not apply to the extent such credit would result in a duplication of benefits or compensation. The Surviving Corporation and its Subsidiaries shall assume all obligations for any and all vacation and paid time off balances of Continuing Employees and assume and pay all costs and notice obligations incurred in connection with terminations of non-Continuing Employees.
(c) From and after the Closing Date, with respect to each Parent Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Continuing Employee is or becomes eligible to participate during the calendar year in which the Closing occurs, Parent shall use commercially reasonable efforts to cause each such Parent Benefit Plan to (i) waive all limitations as to pre-existing conditions, waiting periods, required physical examinations and exclusions with respect to participation and coverage requirements applicable under such Parent Benefit Plan for such Continuing Employees and their eligible dependents to the same extent that such pre-existing conditions, waiting periods, required physical examinations and exclusions would not have applied or would have been waived under the corresponding Company Employee Plan in which such Continuing Employee was a participant immediately prior to the Closing Date but, with respect to long-term disability and life insurance benefits and coverage, solely to the extent permitted under the terms and conditions of Parent’s applicable insurance contracts in effect as of the Closing Date; provided, however, that for purposes of clarity, to the extent such benefit coverage includes eligibility conditions based on periods of employment, Section 6.07(b) shall control; and (ii) provide each Continuing Employee and their eligible dependents with credit for any co-payments and deductibles paid during the portion of the calendar year prior to the Closing Date in satisfying
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any applicable co-payment or deductible requirements under such Parent Benefit Plan for the applicable calendar year, to the extent that such expenses were recognized for such purposes under the comparable Company Employee Plan.
(d) From and after the Closing Date, Parent shall cause the Surviving Corporation and their respective Subsidiaries to honor, in accordance with its terms, (i) each existing employment, change in control, retention, bonus, cash incentive, severance and termination protection plan, policy or agreement of or between the Company or any of its Subsidiaries and any current or former officer, director or employee of the Company or Subsidiary, and (ii) all vested and accrued benefits under any Company Employee Plan. Parent acknowledges that the transaction contemplated hereby shall constitute a “change in control”, “change of control”, “acquisition” and/or “sale event” (or a term of similar import) for purposes of each Company Employee Plan set forth on Section 4.16(e) of the Company Disclosure Schedule that uses such term (or a term of similar import).
(e) This Section 6.07 shall not apply to any employee who is represented by a labor union, works council, or other labor organization if the terms and conditions of employment of any such employee are governed exclusively by any applicable Labor Agreement.
(f) Nothing in this Section 6.07 shall be deemed to: (i) guarantee employment for any period of time or preclude the ability of Parent, the Surviving Corporation or their respective Subsidiaries to terminate the employment of any Continuing Employee at any time for any reason; (ii) establish, amend or modify any Parent Benefit Plan or Company Employee Plan or any other benefit or compensation plan, policy, program, agreement, arrangement or contract; (iii) require Parent, the Surviving Corporation or any of their Affiliates to continue or amend any particular benefit plan after the consummation of the transactions contemplated in this Agreement, and any such plan may be amended or terminated in accordance with its terms and Applicable Law; or (iv) create or confer any claims, rights or benefits (including any third-party beneficiary rights) in any Person other than the parties hereto. Notwithstanding anything to the contrary in Section 6.07, the covenants set forth in this Section 6.07 shall not apply to employees who are furloughed, terminated, temporarily laid off, or subject to reduced hours or benefits as a result of COVID-19-related circumstances, except as otherwise required by Applicable Law.
Section 6.08 State Takeover Laws. If any “control share acquisition,” “fair price,” “moratorium” or other anti-takeover Applicable Law becomes or is deemed to be applicable to the Company, Parent, Merger Sub, the Merger or any other transaction contemplated by this Agreement, then each of the Company, Parent, Merger Sub, and their respective boards of directors shall grant such approvals and take such actions within their respective authority as are necessary so that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise act to render such anti-takeover Applicable Law inapplicable to the foregoing.
Section 6.09 Approval of Parent. Immediately after the execution and delivery of this Agreement, Parent or the applicable Affiliate of Parent, in its capacity as the sole stockholder of Merger Sub, shall execute and deliver to Merger Sub and the Company a written consent adopting this Agreement in accordance with the DGCL.
Section 6.10 Voting of Shares. Parent shall vote, or cause to be voted, any shares of Company Common Stock beneficially owned by it or any of its Affiliates (including the Equity Investors), in favor of adoption of this Agreement and any related proposals presented by the Company at the Stockholder Meeting, and will vote or cause to be voted the shares of Merger Sub held by it or any of its Subsidiaries, as the case may be, in favor of adoption of this Agreement.
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Section 6.11 Director and Officer Liability.
(a) For six years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, maintain officers’ and directors’ liability insurance in respect of acts, errors or omissions occurring prior to the Effective Time covering each such person currently covered by the Company’s and the Company’s Subsidiaries’ officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect as of immediately prior to the Effective Time; provided, however, that the provisions of the immediately preceding sentence shall be deemed to have been satisfied if prepaid “tail” or “runoff” policies have been obtained by either the Company or Parent, which policies provide such persons currently covered by such policies with coverage for an aggregate period of six years with respect to claims arising from acts, errors or omissions that occurred on or before the Effective Time, including in respect of the transactions contemplated by this Agreement; provided, further, that (x) in satisfying its obligation under this Section 6.11(a), neither Parent nor the Surviving Corporation shall be obligated to pay aggregate annual premiums in excess of 350% of the amount paid for the policy year in effect immediately prior to the Effective Time (the “Maximum Premium”) and (y) the Company shall not be permitted to obtain any “tail” or “runoff” officers’ and directors’ liability insurance policies with a cost in excess of the Maximum Premium. If the aggregate premiums of any such insurance coverage exceed the Maximum Premium, then the Surviving Corporation will be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Premium. If any such prepaid policies described in this Section 6.11(a) have been obtained by the Company prior to the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain any and all such policies in full force and effect for their full term, and continue to honor the obligations thereunder.
(b) From and after the Effective Time, each of Parent and the Surviving Corporation shall: (i) indemnify (including advancement of expenses) and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company or of a Subsidiary of the Company (each an “Indemnified Party”) for any and all costs and expenses (including fees and expenses of legal counsel, which shall be advanced as they are incurred; provided that the Indemnified Party shall have made an undertaking to repay such expenses if it is ultimately determined that such Indemnified Party was not entitled to indemnification), judgments, fines, penalties or liabilities (including amounts paid in settlement or compromise) imposed upon or incurred by such Indemnified Party in connection with or arising out of any action, suit or other Proceeding (whether civil or criminal) in which such Indemnified Party may be involved or with which he or she may be threatened (regardless of whether as a named party or as a participant other than as a named party, including as a witness) (an “Indemnified Party Proceeding”) (A) by reason of such Indemnified Party’s being or having been such director or officer or an employee or agent of the Company or any Subsidiary of the Company or otherwise in connection with any action taken or not taken at the request of the Company or any Subsidiary of the Company or (B) arising out of such Indemnified Party’s service in connection with any other corporation or organization for which he or she serves or has served as a director, officer, employee, agent, trustee or fiduciary at the request of the Company (including in any capacity with respect to any employee benefit plan), in each of (A) or (B), whether or not the Indemnified Party continues in such position at the time such Indemnified Party Proceeding is brought or threatened and at, or at any time prior to, the Effective Time (including any Indemnified Party Proceeding relating in whole or in part to the transactions contemplated by this Agreement or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnified Party), to the fullest extent permitted under Applicable Law; and (ii) fulfill and honor in all respects the obligations of the Company pursuant to: (x) each indemnification or similar agreement between the Company or any Subsidiary of the Company and any Indemnified Party (or any other employee or former employee of the Company or any of its Subsidiaries) in effect as of the date hereof; and (y) any indemnification provision (including advancement of expenses) and any exculpation provision set forth in the certificate of incorporation or bylaws of the Company or similar organizational documents of any Subsidiary of the Company as in effect on the date hereof. To the fullest extent permitted under Applicable Law and not in limitation of the foregoing, Parent shall pay all expenses, including reasonable attorneys’ fees and expenses, that may be incurred by Indemnified Parties in connection with their successful enforcement of their rights provided under this
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Section 6.11. Parent’s and the Surviving Corporation’s obligations under the foregoing clauses (i) and (ii) shall continue in full force and effect for a period of six years from the Effective Time; provided, however, that all rights to indemnification, exculpation and advancement of expenses in respect of any claim asserted or made, and for which an Indemnified Party delivers a written notice to Parent or the Surviving Corporation within such period asserting a claim for indemnification pursuant to this Section 6.11(b), shall continue until the final disposition of such claim. No Indemnified Party shall compromise, settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding, any Indemnified Party Proceeding for which indemnification is being sought under this Section 6.11(b) unless Parent has consented thereto in writing (which consent will not be unreasonably withheld, conditioned or delayed) and Parent and the Surviving Corporation shall not have any liability for any such compromise, settlement or arrangement effected without Parent’s prior written consent.
(c) During the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) cause the organizational documents of the Surviving Corporation and any of its successors or assigns to contain provisions with respect to indemnification, exculpation and the advancement of expenses that are at least as favorable to those subject to those provisions as the indemnification, exculpation and advancement of expenses provisions set forth in the organizational documents of the Company as of the date hereof.
(d) If Parent, the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.11.
(e) The provisions of this Section 6.11 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under any certificate of incorporation or bylaws, by contract or otherwise. The obligations of Parent and the Surviving Corporation under this Section 6.11 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnified Party or other such Person unless (x) such termination or modification is required by Applicable Law or (y) the affected Indemnified Party or other Person shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnified Parties and other Persons referenced herein shall be third party beneficiaries of this Section 6.11).
Section 6.12 Reasonable Best Efforts.
(a) Subject to the terms and conditions of this Agreement, the Company and Parent shall use their reasonable best efforts to take, or cause to be taken (including by their respective Subsidiaries), all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under Applicable Law to consummate the transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or non-actions, waivers, consents and approvals from Governmental Authorities and the making of all necessary, notices, registrations and filings (including notices and filings with Governmental Authorities, if any) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid a Proceeding by, any Governmental Authorities, (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties (provided that the Company shall not be obligated to make any payment or commercial concession to any Third Party, or incur any liability, as a condition to (or in connection with) obtaining any such consent or waiver, unless such payment, concession or liability is requested by Parent and is conditioned and effective only upon the Closing), and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement; provided that (x) the Company shall not be obligated to obtain any approval from CFIUS or any Governmental Authority under NISPOM to consummate the transactions contemplated by this Agreement, including the Merger, and (y) Parent and Merger Sub shall not assert that the submission of any filing under the DPA or NISPOM or approval from CFIUS is a condition to the Closing.
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(b) In furtherance and not in limitation of the foregoing, each of the Company and Parent shall: (i) promptly, but in no event later than ten Business Days after the date hereof, file any and all notices, reports and other documents required to be filed by such party (and, if applicable, cause their respective Affiliates to promptly file any notices, reports and other documents required to be filed by such party)) under the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement and shall use reasonable best efforts to promptly secure the expiration or termination of any applicable waiting periods under the HSR Act; (ii) promptly make all filings (and, if applicable, cause their respective Affiliates to promptly make all filings), and use reasonable best efforts to timely obtain all consents, permits, authorizations, waivers, clearances and approvals, and to cause the expiration or termination of any applicable waiting periods, as may be required under any other applicable Antitrust Laws, applicable foreign investment regulations overseen by the relevant Governmental Authority of the jurisdictions set forth on Section 7.01(c) of the Company Disclosure Schedule, the DPA or the NISPOM; and (iii) as promptly as reasonably practicable provide such information (and, if applicable, cause their respective Affiliates to as promptly as reasonably practicable provide such information) as may reasonably be requested by the U.S. Department of Justice (the “DOJ”) or the Federal Trade Commission (the “FTC”) under the HSR Act or by any other Governmental Authority under applicable Antitrust Laws, applicable foreign investment regulations, the DPA or the NISPOM in connection with the Merger and the other transactions contemplated by this Agreement, as well as any information required to be submitted to comply with a request for additional information in order to commence or end a statutory waiting period.
(c) Without limiting the generality of anything contained in this Section 6.12, each party hereto shall use reasonable best efforts to: (i) give the other parties prompt notice of the making or commencement of any request, inquiry or Proceeding by any Governmental Authority with respect to the Merger and the other transactions contemplated by this Agreement; (ii) keep the other parties reasonably informed as to the status of any such request, inquiry or Proceeding; and (iii) promptly inform the other parties of any substantive communication to or from the FTC, DOJ, CFIUS, or any other Governmental Authority to the extent regarding the Merger and the other transactions contemplated by this Agreement, or regarding any such request, inquiry or Proceeding, and provide a copy of all written communications. Subject to Applicable Law, in advance and to the extent practicable, each of Parent or the Company, as the case may be, will consult the other on all the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries that appear in any filing made with, or written materials submitted to, and shall provide the other party with a reasonable opportunity to review and provide comments on any proposed substantive written communications to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement and shall incorporate all comments reasonably proposed by Parent or the Company, as the case may be; provided, however, that the parties may reasonably designate competitively sensitive materials required to be shared under this provision as outside counsel only and such information shall be provided solely to those individuals acting as outside antitrust or CFIUS counsel for the other parties (provided that such counsel shall not disclose such information to such other parties and shall enter into a joint defense agreement with the providing party). In addition, except as may be prohibited by any Governmental Authority or by any Applicable Law, in connection with any such request, inquiry or Proceeding in respect of the Merger and the other transactions contemplated by this Agreement, each party hereto will permit authorized Representatives of the other party to be present at each meeting or telephone or video conference relating to such request, inquiry or Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Authority in connection with such request, inquiry or Proceeding.
(d) In furtherance and not in limitation of the foregoing, each of Parent and TIBCO agrees to take promptly any and all steps necessary to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under Antitrust Laws in each of the jurisdictions set forth on Section 7.01(c) of the Company Disclosure Schedule that may be required by any Governmental Authority, so as to enable the parties hereto to consummate the Merger and the other transactions contemplated by this Agreement as soon as reasonably practicable (and in any event no later than five Business Days prior to the End Date), including (i) committing to or effecting, by consent decree, hold separate order, trust, or otherwise, the
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sale, divestiture, license, transfer, assignment or other disposition of assets or businesses of TIBCO or the Company or their respective Subsidiaries, (ii) terminating, relinquishing, modifying, transferring, assigning, restructuring, or waiving existing agreements, licenses, collaborations, relationships, ventures, contractual rights, obligations or other arrangements of TIBCO or the Company or their respective Subsidiaries and (iii) creating or consenting to create or enter into any agreements, licenses, collaborations, relationships, ventures, contractual rights, obligations, behavioral undertakings or other arrangements (and, in each case, to enter, or offer to enter, into agreements and stipulate to the entry of an Order or file appropriate applications with any Governmental Authority in connection with any of the foregoing) and in the case of actions by or with respect to TIBCO or the Company or their respective Subsidiaries or their businesses or assets, by consenting to such action by the Company; provided, however, that any such action to be taken by (x) the Company may, at the discretion of the Company, be conditioned upon consummation of the Merger and the other transactions contemplated by this Agreement or (y) TIBCO or Parent may, at the discretion of Parent, be conditioned upon consummation of the Merger and the other transactions contemplated by this Agreement (each a “Divestiture Action”), as may be necessary or required to avoid the entry of, or to effect the dissolution of or vacate or lift, any Order that would otherwise have the effect of preventing consummation of the Merger and the other transactions contemplated by this Agreement, and to ensure that no Governmental Authority with the authority to clear, authorize or otherwise approve consummation of the Merger and the other transactions contemplated by this Agreement, fails to do so as promptly as practicable and in any event no later than five Business Days prior to the End Date. Parent and the Company shall cooperate in any proposal, negotiation, or offer to commit and to effect, by consent decree, hold separate order or otherwise, any and all Divestiture Actions or otherwise to offer to take or offer to commit (and if such offer is accepted, commit to and effect) to take any Divestiture Action as may be required to resolve any Governmental Authority’s objections to the Merger and the other transactions contemplated by this Agreement; provided, however, that Parent shall control any such proposal negotiation or offer and any and all Divestiture Actions; provided, further, however, that notwithstanding any other provisions in this Agreement, Parent shall only be required to take, or agree to take, any Divestiture Action related to the Company and its Subsidiaries and/or TIBCO and its Subsidiaries. The parties agree not to enter into any agreement with a Governmental Authority to delay or otherwise not to consummate as soon as possible the Merger except with the prior written consent of the other parties hereto, such consent not to be unreasonably withheld or conditioned. Notwithstanding anything to the contrary in this Agreement (including with respect to any obligations of Parent, TIBCO, or the Company otherwise set forth in this Section 6.12), in no event shall Parent, TIBCO or any of their respective Subsidiaries be required to, and the Company shall not without the prior written consent of Parent, take or agree to take any action, including any Divestiture Action, that is reasonably likely to have a material impact on the business of the Company and TIBCO, taken as a whole.
(e) In the event that any administrative or judicial action is commenced by a Governmental Authority challenging the Merger under Antitrust Laws and the other transactions contemplated by this Agreement and such action seeks to prevent consummation of the Merger and the other transactions contemplated by this Agreement, each of Parent and Merger Sub shall cooperate with the Company and use its respective reasonable best efforts to contest any such action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger and the other transactions contemplated by this Agreement.
(f) Neither Parent, Merger Sub nor TIBCO shall, nor shall they permit Balboa Holdings LP or its or their respective Subsidiaries to, directly or indirectly, acquire or agree to acquire any rights, assets, business, Person or division thereof, if such acquisition would reasonably be expected to materially delay the obtaining of, or materially increase the risk of not obtaining, any applicable clearance, consent, approval or waiver of any Governmental Authority (including under Antitrust Laws) with respect to the Merger and the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub shall permit or agree to permit any Person to obtain equity interests (or rights to obtain equity interests) in Parent, Merger Sub or TIBCO (or Balboa Holdings LP or its or their respective Subsidiaries) if such acquisition would reasonably be expected to materially delay the obtaining of, or materially increase the risk of not obtaining, any applicable clearance, consent, approval or waiver of any Governmental Authority under Antitrust Laws with respect to the Merger and the other transactions contemplated by this Agreement.
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Section 6.13 Stockholder Litigation. The Company shall as promptly as reasonably practicable (and in any event within forty-eight hours of learning of) notify Parent in writing of, and shall give Parent a reasonable opportunity to participate in the defense and settlement of, any Stockholder Litigation. The Company may not compromise, settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding, any Stockholder Litigation unless Parent has consented thereto in writing (which consent will not be unreasonably withheld, conditioned or delayed). For purposes of this Section 6.13, “participate” means that the Company shall keep Parent reasonably apprised of the proposed strategy and other significant decisions with respect to any Stockholder Litigation, and Parent may offer comments or suggestions with respect to such Stockholder Litigation which the Company shall consider in good faith, but Parent shall not be afforded decision-making power or authority, except for the settlement or compromise consent set forth above. Without otherwise limiting the Indemnified Parties’ rights with regard to the right to counsel, following the Effective Time, the Indemnified Parties shall be entitled to continue to retain Goodwin Procter LLP or such other counsel selected by such Indemnified Parties prior to the Effective Time to defend any Stockholder Litigation.
Section 6.14 Public Announcements. Parent, the Company and TIBCO shall consult with each other before issuing any press release or making any other public announcements or statements, or scheduling a press conference or conference call with investors or analysts, with respect to this Agreement or the transactions contemplated by this Agreement and shall not issue any such press release or make any such other public announcement or statement without the consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, except as such release or announcement may be required by Applicable Law or any listing agreement with or rule of any national securities exchange or association upon which the securities of the Company are listed, in which case the party required to make the release, announcement or statement shall use reasonable best efforts to consult with the other party about, and allow the other party reasonable time (taking into account the circumstances) to comment on, such release, announcement or statement in advance of such issuance; provided, however, that notwithstanding the foregoing and for the avoidance of doubt, (A) neither the Company nor Parent shall be required to consult with the other party before issuing any press release or making any other public statement with respect to an Adverse Recommendation Change effected in accordance with Section 6.03 or, in the case of the Company, as otherwise expressly permitted under Section 6.03, (B) the Company shall not be required to consult with Parent before disseminating any communications to employees, customers, partners or vendors so long as such communications are substantively consistent with (and do not add additional material information to) previous releases, public disclosures, public statements or other communications made by the parties not in violation of this Section 6.14 and (B) Parent shall not be required to consult with the Company before issuing any disclosures or communications to existing or prospective general or limited partners, equity holders, members, managers and investors of such Person or any Affiliates of such Person so long as such disclosures or communications are substantively consistent with (and do not add additional material information to) previous releases, public disclosures, public statements or other communications made by the parties not in violation of this Section 6.14.
Section 6.15 Further Assurances. At and after the Effective Time, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of the Company or Merger Sub, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or Merger Sub, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.
Section 6.16 Section 16 Matters. Prior to the Effective Time, the Company shall take all such steps as may be reasonably required to cause any dispositions of shares of Company Common Stock resulting from the transactions contemplated by this Agreement by each director or officer who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act, to the extent permitted by Applicable Law.
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Section 6.17 Financing.
(a) Each of Parent, Merger Sub and TIBCO shall use, and shall cause its Affiliates (including the Preferred Equity Issuer) to use, its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Financing on the terms and conditions (including, to the extent required, by the Marketing Period and implementation of any “flex” provisions) described in the Financing Commitment Letters, and shall not permit any amendment, restatement, replacement, supplement or modification to be made to, or any waiver of any provision under, the Financing Commitment Letters if such amendment, restatement, replacement, supplement, modification or waiver (A) with respect to the Financing Commitment Letters, reduces (or would have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) unless (x) the Debt Financing, the Preferred Equity Financing or the Equity Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount and (y) after giving effect to any of the transactions referred to in clause (x) above, the representations and warranties set forth in Section 5.09 shall be true, correct and complete, (B) imposes new or additional conditions, or would permit the imposition of additional conditions precedent, or otherwise expands, amends, supplements or modifies any of the conditions precedent to the Financing or other provision of the Financing Commitment Letters related to conditionality of the funding of such Financing (x) in a manner materially adverse to the Company (including with respect to the certainty and timing of funding), or (y) that would (or would reasonably be expected to) (i) delay or prevent or make less likely the funding of the full amount of the Financing to be available to Parent (or satisfaction of the conditions to the Financing) on the Closing Date (taking into account the expected timing of the Marketing Period) or (ii) adversely impact the ability of TIBCO, Parent, Merger Sub, the Preferred Equity Issuer or the Company, as applicable, to enforce its rights against other parties to the Financing Commitment Letters or the definitive agreements with respect thereto, or (C) otherwise adversely affect the ability of TIBCO, Parent, Merger Sub or the Preferred Equity Issuer to enforce their rights under the Financing Commitment Letters or to consummate the transactions contemplated by this Agreement or the timing of the Closing, including by making the funding of the Financing less likely to occur (any such actions, impacts or effects in clauses (A), (B) and (C) directly above, an “Adverse Effect on Financing”) (provided that (1) in any event, and notwithstanding anything to the contrary contained in this Agreement, TIBCO, Parent and/or Merger Sub (and/or their applicable Affiliates) may amend any Financing Commitment Letter to add lenders, purchasers, investors, lead arrangers, bookrunners, syndication agents or other Debt Financing Sources (or, with respect to the Preferred Equity Commitment Letter, the Preferred Equity Financing Sources) who had not executed such Financing Commitment Letter as of the date hereof and, in connection therewith, amend the additional lender, purchasers, investors, lead arrangers, bookrunners or syndication agents provisions with respect to the appointment of such additional lenders, purchasers, investors, lead arrangers, bookrunners, syndication agents or other Debt Financing Sources (or, with respect to the Preferred Equity Commitment Letter, the Preferred Equity Financing Sources), in each case, which do not have an Adverse Effect on Financing (it being understood and agreed that the creditworthiness of any such additional lenders, purchasers, investors, lead arrangers, bookrunners, syndication agents or other Debt Financing Sources (or, with respect to the Preferred Equity Commitment Letter, the Preferred Equity Financing Sources) shall not be taken into account in determining whether such amendments result in an Adverse Effect on Financing); and (2) TIBCO, Parent or Merger Sub shall (I) disclose to the Company promptly its intention to so amend, restate, replace, supplement, modify, or waive any of the Financing Commitment Letters and (II) promptly (and, in any event, within five Business Days thereof) furnish to the Company copies of any agreements or other documentation with respect to such amendment, restatement, replacement, supplement, modification or waiver). TIBCO, Parent and Merger Sub shall not agree (and shall not permit any of their respective Affiliates (including the Preferred Equity Issuer)) to the withdrawal, termination, repudiation or rescission of any commitment in respect of the Debt Financing or Preferred Equity Financing without the prior written consent of the Company, and shall not, without the prior written consent of the Company, release or consent to the termination of the obligations of (I) the Debt Financing Sources under the Debt Commitment Letter, (II) the Preferred Equity Financing Sources under the Preferred Equity Commitment Letter or (III) any Person under the Equity Commitment Letter, as applicable. Parent shall promptly deliver to the Company copies of any such amendment, restatement, supplement, replacement,
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modification, withdrawal, termination, repudiation, rescission or waiver. For purposes of this Agreement, as applicable, (i) references to “Financing” shall include the financing contemplated by the Financing Commitment Letters as permitted to be amended, restated, modified, supplemented or replaced by this Section 6.17(a), (ii) references to “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter (and references to “Preferred Equity Financing” shall include the preferred equity financing contemplated by the Preferred Equity Commitment Letter) as permitted to be amended, restated, modified, supplemented or replaced by this Section 6.17(a) and any Alternative Financing permitted by Section 6.17(b) and (iii) references to “Debt Commitment Letter” and “Preferred Equity Commitment Letter” (as applicable) shall include such documents as permitted to be amended, restated, modified, supplemented or replaced by this Section 6.17(a) or any commitment letters for Alternative Financing permitted by Section 6.17(b).
(b) Each of Parent, Merger Sub and TIBCO shall, and shall cause its Affiliates (including the Preferred Equity Issuer) and its and their respective officers, employees, advisors and other Representatives to, use its reasonable best efforts to (A) maintain in full force and effect the Financing Commitment Letters, (B) promptly negotiate and enter into definitive agreements with respect to the Debt Financing and Preferred Equity Financing on the terms and conditions (including, as necessary to ensure the funding of the Debt Financing and the Preferred Equity Financing on the Closing Date, agreeing to any requested changes to the Debt Financing in accordance with any “flex” provisions pursuant to customary syndication practices) contained in the Debt Commitment Letter and the Preferred Equity Commitment Letter (or, except to the extent agreed to by TIBCO, Parent and Merger Sub in instances that would not have an Adverse Effect on Financing, on terms no less favorable to TIBCO, Parent, Merger Sub or their respective Affiliates (including the Preferred Equity Issuer) than the terms and conditions (including flex provisions) in the Debt Commitment Letter and the Preferred Equity Commitment Letter), (C) satisfy (unless waived) on a timely basis all conditions to funding in the Debt Commitment Letter and the Preferred Equity Commitment Letter and, in each case, such definitive agreements thereto and in the Equity Commitment Letter and to consummate the Financing at or prior to the Closing, (D) enforce its rights under the Financing Commitment Letters to the extent necessary to consummate the transaction contemplated hereby and (E) comply with its obligations under the Financing Commitment Letters. Neither TIBCO, Parent nor Merger Sub shall, nor shall they permit any of their respective Affiliates (including the Preferred Equity Issuer) to, without the prior written consent of the Company, take any action or enter into any transaction that would (or would reasonably be expected to) impair, delay or prevent consummation of all or any portion of the Financing necessary to fund the amounts required to be paid by TIBCO, Parent or Merger Sub (or any other party to the Financing Commitment Letters, other than the Debt Financing Sources and the Preferred Equity Financing Sources) in connection with the Merger and the other transactions contemplated by this Agreement (including, without limitation, paying in cash all of the Financing Purposes). Parent shall promptly, upon reasonable written request by the Company, keep the Company fully informed, in all reasonable detail, of the status of its efforts to arrange and consummate the Financing and of all material developments in respect thereof. Parent shall provide the Company, promptly upon reasonable request, with copies of any documents in respect of the Debt Financing and the Preferred Equity Financing (in each case, limited to the posting versions and final versions thereof) and such other information on the status and any syndication efforts as shall be requested by the Company, in each case, to the extent (1) necessary to allow the Company to monitor the progress of such financing activities or (2) helpful in assisting the Company, its Subsidiaries or any of their respective Representatives in satisfying any of their obligations under the Section 6.17. Without limiting the foregoing, TIBCO, Parent and Merger Sub shall promptly, and in any event within two Business Days following the occurrence thereof, in each case, to the extent TIBCO, Parent or Merger Sub have actual knowledge thereof, notify the Company in writing if at any time prior to the Closing Date (i) any Commitment Letter expires or is terminated for any reason, (ii) any Person party to any Commitment Letter indicates in writing that it will not provide, or it refuses to provide, all or any portion of the Financing contemplated by the Financing Commitment Letters on the terms and subject only to the conditions expressly stated therein, (iii) TIBCO, Parent, Merger Sub or the Preferred Equity Issuer or, to the knowledge of TIBCO, Parent or Merger Sub, any other Person party to the Financing Commitment Letters defaults or breaches any of the terms or conditions set forth in any Commitment Letter, (iv) any event occurs that, with or without notice or lapse of time or both, would (or would reasonably be expected to) result in a default or breach of any of the terms or conditions set forth in any
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Commitment Letter, (v) TIBCO, Parent or Merger Sub receives any written notice or other communication with respect to any (A) actual or potential expiration or termination of, repudiation by any Person party to or default or breach under any Commitment Letter or (B) Persons party to the Financing Commitment Letters disputing in writing its obligation to fund the Financing on the Closing Date in an amount necessary to fund the amounts required to be paid by TIBCO, Parent, Merger Sub and/or the Preferred Equity Issuer (and/or any other party under the Financing Commitment Letters, other than the Debt Financing Sources and the Preferred Equity Financing Sources) in connection with the Merger and the other transactions contemplated by this Agreement (including to pay in cash all of the Financing Purposes) or (vi) if at any time for any reason TIBCO, Parent or Merger Sub no longer believes in good faith that TIBCO, Parent, Merger Sub and/or the Preferred Equity Issuer (and/or any other party under the Financing Commitment Letters, other than the Debt Financing Sources and the Preferred Equity Financing Sources) will be able to obtain on a timely basis, and in any event no later than the Closing Date, the Financing in an amount necessary to fund the amounts required in connection with the Merger and the other transactions contemplated by this Agreement (including to pay in cash all of the Financing Purposes). Upon the written request of the Company, TIBCO, Parent and Merger Sub shall promptly, and in any event within two Business Days following such written request, provide any information reasonably requested by the Company relating to any circumstance referred to in clauses (i), (ii), (iii), (iv), (v) or (vi) of the immediately preceding sentence. Upon the occurrence of any circumstance referred to in clause (i), (ii), (iii), (iv), (v) or (vi) of the second preceding sentence or if any portion of the Debt Financing or the Preferred Equity Financing otherwise becomes unavailable, and such portion is reasonably required to fund the amounts required to be paid by TIBCO, Parent and/or Merger Sub in connection with the Merger and the other transactions contemplated by this Agreement, 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 and to pay all fees, expenses and other amounts contemplated to be paid by Preferred Equity Issuer, TIBCO, Parent and/or Merger Sub (and/or any other party to the Financing Commitment Letters, other than the Debt Financing Sources and the Preferred Equity Financing Sources) pursuant to this Agreement, the Commitment Letters and the Financing and to pay any of the other Financing Purposes, TIBCO, Parent and Merger Sub shall, and shall cause their Affiliates (including the Preferred Equity Issuer and each related party to any Financing Commitment Letter to) to, use their reasonable best efforts to arrange and obtain in replacement thereof alternative financing from alternative sources (“Alternative Financing”) in an amount sufficient to pay in cash all Financing Purposes with terms and conditions not materially less favorable (unless agreed to by TIBCO, Parent and Merger Sub), in the aggregate, to TIBCO, Parent, Merger Sub and their Affiliates (including the Preferred Equity Issuer and each related party to any Financing Commitment Letter) than the terms and conditions in the Preferred Equity Commitment Letter and the Debt Commitment Letter (including with respect to funding and timing of funding) on the date hereof as promptly as reasonably practicable following the occurrence of such event; provided that, notwithstanding anything to the contrary in this Agreement, TIBCO, Parent and Merger Sub shall not be required to (x) pay or incur materially more (taken as a whole) fees, OIDs or pricing relative to the pricing or fee terms of the Debt Commitment Letter or Preferred Equity Commitment Letter, as applicable, as in effect on the date of this Agreement, taking into account any flex terms (other than any increases in OID or interest rates that generally correspond with interest rate increases implemented by the United States Federal Reserve or any other applicable Governmental Authority, which such increases shall not be deemed to be increases to OID (to the extent any increase in interest rate takes the form of OID) or the interest rate pricing terms of the financing contemplated by the Debt Commitment Letter or Preferred Equity Commitment Letter) or (y) seek equity financing (other than the Preferred Equity Financing) from any Person other than the applicable sponsors or in an amount in excess of the Equity Financing contemplated by the Equity Commitment Letters as of the date hereof or on terms and conditions other than as set forth in the Equity Commitment Letters. Parent shall promptly deliver to the Company true and complete copies of all agreements, arrangements or understandings related to any such Alternative Financing; provided that fee amounts, pricing and pricing caps and “flex” provisions in the fee letter entered into in connection with the Debt Financing, none of which (x) impose or permit the imposition of additional conditions or expand or permit the expansion of any existing conditions, in each case, to the funding of the full amount of the Debt Financing or the Preferred Equity Financing on the Closing Date or (y) would reasonably be expected to reduce the aggregate amount of the Debt Financing or the Preferred Equity Financing available to TIBCO, Parent, Merger Sub or any of their Affiliates
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(including the Preferred Equity Issuer) on the Closing Date or affect the availability of the full amount of the Debt Financing or the Preferred Equity Financing on the Closing Date, may have been redacted in a customary manner. TIBCO, Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any Alternative Financing, is not a condition to Closing.
(c) During the Interim Period, in each case, subject to the limitations in this Section 6.17(c), the Company shall use its reasonable best efforts to provide, and shall cause each of its Subsidiaries and each of their respective Representatives to, use reasonable best efforts to provide to Parent and Merger Sub, in each case at Parent’s sole expense (other than (x) costs and expenses incurred in connection with the preparation of historical financial statements in (and at the similar times as previously prepared in) the ordinary course of business, (y) any amounts incurred in connection with the repayment, redemption or satisfaction and discharge of Indebtedness on the Closing Date in connection with the delivery of the Company Payoff Letters and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby entirely and completely regardless of (A) any debt financing established in connection herewith and (B) any requirements or actions under this Section 6.17 (collectively, the “Parent Cost Exceptions”)), cooperation reasonably requested in writing by Parent that is customary in connection with the arrangement of the Debt Financing (including any permanent takeout financing with respect to any bridge financing component of the Debt Financing) and/or the Preferred Equity Financing, including using reasonable best efforts upon the reasonable written request by Parent solely during the Interim Period and subject to the limitations in this Section 6.16(c), to (i) upon reasonable prior written notice cause the participation by appropriate and applicable senior management of the Company in a reasonable number of meetings, presentations, roadshows, conference calls, drafting sessions, due diligence sessions (including accounting due diligence sessions) and meetings with prospective lenders upon reasonable prior written notice (but not more than six primary bank meetings), and ratings agencies, in each case, which may be, at the Company’s option, on a telephonic or videoconference basis, (ii) assist with the preparation of customary bank books, confidential information memoranda, offering memoranda, private placement memoranda, lender and preferred equity investor presentations and rating agency presentations and other customary documents reasonably requested in writing in connection with the Debt Financing and the Preferred Equity Financing (including any Alternative Financing with respect to the Debt Financing and/or Preferred Equity Financing), including in the preparation of “public side” versions thereof and assisting Parent in obtaining any corporate or facility ratings from any ratings agencies contemplated by the Debt Financing and/or Preferred Equity Financing; provided that any of the foregoing that include disclosure and financial statements with respect to the Company and its Subsidiaries shall only reflect the Surviving Corporation as the obligor(s) and none of the foregoing shall be issued by the Company or its Subsidiaries, (iii) furnish Parent promptly with the Company Required Financial Information and, as it relates to any high yield debt securities issued on a “Rule 144A for life” basis, such other pertinent customary financial and other customary information regarding the Company and its Subsidiaries as reasonably requested by Parent or Merger Sub, and any updates thereto as reasonably requested by such Persons and with information in response to reasonable due diligence requests, and otherwise cooperate with customary due diligence efforts, in connection with the placement of any high yield debt securities to be issued on a “Rule 144A for life” basis in connection with the Debt Financing, and execute (A) customary authorization letters to accompany the Company Required Financial Information provided by the Company regarding the material accuracy of the Company Required Financial Information provided by the Company and contained in the aforementioned marketing materials with respect to the Company and its Subsidiaries that have been reviewed and commented on by the Company and, with respect to any “public version” of the aforementioned marketing materials with respect to the Company and its Subsidiaries that have been reviewed and commented on by the Company, the lack of material non-public information with respect to the Company and its Subsidiaries therein and (B) customary management representation letters and CFO certificates with respect to the financial information included in the marketing materials for any debt offerings; provided, however, that, in each case, the Company shall only be obligated to deliver such financial statements and information to the extent they both (y) do not contain Excluded Information and (z) may be reasonably obtained from the books and records of the Company and its Subsidiaries without undue effort or expense, (iv) assist Parent in preparing pro forma financial statements of the type and form customarily included in offering memoranda for high yield debt securities issued on a “Rule 144A for life” basis; provided, that the
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Company shall have no obligation to furnish any Excluded Information, (v) furnish promptly, and in any event at least three Business Days prior to the Closing Date (to the extent requested at least nine Business Days prior to the Closing Date), all documentation and other information required under the Debt Commitment Letters to the extent required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2001 and rules adopted by the Financial Crimes Enforcement Network of the U.S. Treasury Department, but in each case, solely as relating to the Company and its Subsidiaries to the extent such Subsidiaries shall be guarantors of the Debt Financing or Preferred Equity Financing, (vi) solely to the extent full draft and final copies of such documentation that are available have been provided to the Company and its attorneys, execute and deliver customary evidence of authority, customary officer’s certificates and customary solvency certificates, in each case, solely to the extent related to the Company and its Subsidiaries and solely as reasonably requested in writing by Parent or Merger Sub (provided, however, that no officer of the Company or any of its Subsidiaries who is not remaining in such position following the Closing shall be obligated to execute any evidence, certificate or other document contemplated by this Section 6.17(c) in connection with the Debt Financing or Preferred Equity Financing and no such evidence, certificate or other document shall be effective prior to Closing), (vii) provide commercially reasonable and customary assistance in the preparation and execution of the definitive documentation in connection with the Debt Financing, including executing and delivering by the Company and its Subsidiaries, effective only upon the Closing, of, or completing any schedules or other customary informational requirements relating to the Company and its Subsidiaries with respect to, any credit agreements, purchase agreements, indentures, guarantees, pledge and security documents, other definitive financing documents or other certificates or documents contemplated by the Debt Financing and/or Preferred Equity Financing, hedging agreements reasonably requested by Parent and otherwise facilitating the creation and perfection of the security interests in the collateral contemplated by the Debt Financing and (viii) facilitating customary cooperation and assistance of the Company’s auditors to (A) provide customary comfort letters (including “negative assurance” comfort) with respect to historical financial information of the Company included in any offering memoranda with respect to any non-convertible high yield debt securities included in the Debt Financing issued on a “Rule 144A for life” basis and (B) attend accounting due diligence sessions; provided that notwithstanding the foregoing, the Company, its Subsidiaries or any of its or their respective officers, employees, advisors and other Representatives shall have no obligation to provide or assist with (I) financial statements of the Company and / or any of its Subsidiaries, other than the financial statements included in the Company Required Financial Information, or information required by Rule 3-03(e), 3-05, 3-09, 3-10 or 3-16, 13-01 or 13-02 of Regulation S-X, Regulation S-K Item 302, and any information not reasonably available to the Company under its current reporting systems or consistently maintained in the ordinary course of business or, solely for the purpose of the definition of Company Required Financial Information, for any period prior to January 1, 2019, (II) information to the extent that the provision thereof would violate Applicable Law, or any obligation of confidentiality binding upon, or waive any privilege that may be asserted by the Company or any of its Subsidiaries, (III) pro forma financial statements, projections or other prospective information, (IV) description of all or any portion of the Financing, any “description of notes” or “description of other indebtedness”, or other information customarily provided by the Debt Financing Sources, any financing source, any party to a Financing Commitment Letter or their respective counsel, (V) projections, risk factors (other than risk factors relating to the business and operations of the Company or any of its Subsidiaries) or other forward-looking statements solely relating to all or any component of the Financing, including any such description to be included in liquidity and capital resources disclosure, (VI) information regarding affiliate transactions that may exist following consummation of the Merger or the other transactions contemplated by this Agreement (unless the Company or any of its Subsidiaries was party to any such transactions prior to consummation of the Merger), (VII) information regarding any post-Closing pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments, (VIII) information only necessary for the preparation of any projected or forward-looking financial statements or information, in each case, that is not derivable without undue effort or expense by the Company from the books and records of the Company or any of its Subsidiaries, (IX) any information concerning or involving only Persons other than the Company and its Subsidiaries or, solely for the purpose of the definition of Company Required Financial Information, for any period prior to January 1, 2019, (X) solely for the purpose of the definition of Company Required Financial Information, segment financial information, (XI) Compensation Discussion and Analysis or
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other information required by Regulation S-K Item 402, (XII) the executive compensation and related person disclosure rules related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A including Item 404 or Regulation S-K, and (XIII) other information customarily excluded from an offering memorandum used for an offering of “private for life” high yield debt securities pursuant to Rule 144A (such information and materials in clauses (I)-(XIII) of this proviso, the “Excluded Information”). Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall require the Company, its Subsidiaries or any of its or their respective officers, employees, advisors and other Representatives, to: (A) provide cooperation that unreasonably interferes (in the judgment of the Company) with the ongoing business or operations of the Company or its Subsidiaries; (B) provide cooperation that causes any covenant, representation or warranty in this Agreement to be breached; (C) provide cooperation that causes any closing condition set forth in Article 7 to fail to be satisfied or would, based on the advice of the Company’s legal counsel (which, for the avoidance of doubt, may be internal counsel), conflict with, violate or result in a breach of or default under any material Contract (including this Agreement) (to the extent not entered into in contemplation of contravening or circumventing the cooperation obligation set forth in this Section 6.17(c)) or any organizational document of the Company or its Subsidiaries; (D) incur any liability, or (except, with respect to the Surviving Corporation and its Subsidiaries, to the extent contingent upon the occurrence of the Closing) commit to incur, or pay, or be required to pay or reimburse, or (except, with respect to the Surviving Corporation and its Subsidiaries, to the extent contingent upon the occurrence of the Closing) commit to reimburse, any commitment fee or other fee, cost, expense, indemnity, liability, obligation, amount or payment in connection with the Debt Financing or Preferred Equity Financing prior to the Closing; (E) execute, deliver or enter into, or perform any agreement, document, certificate or instrument taking effect prior to the Closing with respect to the Debt Financing or Preferred Equity Financing (other than with respect to customary authorization letters provided under Section 6.17(c)(iii) with respect to information provided by the Company under Section 6.17(c)(ii) above but subject to the proviso set forth therein) and the directors, members, general partners and managers (and any equivalent governing body) of the Company or its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments taking effect prior to the Closing (except to the extent solely with respect to any directors continuing in such directors’ capacities for the Company or the same Subsidiary from and after the Closing) pursuant to which the Debt Financing or Preferred Equity Financing is obtained (including, but not limited to, any credit or other agreements, pledge or security documents, or other certificates); (F) provide cooperation that would cause competitive harm to the Company or its Subsidiaries, if the transactions contemplated by this Agreement are not consummated; (G) provide any legal opinion or other opinion of counsel, or any information that would, based on the good faith advice of the Company’s legal counsel (which, for the avoidance of doubt, may be internal counsel), result in a violation of Applicable Law or loss of attorney-client privilege or that is attorney work product or breach any confidentiality obligations binding on the Company, its Subsidiaries or any of their Affiliates or any of their Representatives; provided that the Company or its Subsidiaries shall use reasonable best efforts to notify Parent that such information is being withheld on such ground and shall use reasonable best efforts to disclose any information being withheld, in each case, to the extent such notification or disclosure would not violate such Applicable Law or result in the loss of (or hinder) such privilege or such attorney work product; (H) encumber any of the assets of the Company or its Subsidiaries or otherwise be an issuer, guarantor or other obligor with respect to the Debt Financing prior to Closing (or provide a pre-filing Uniform Commercial Code financing statement authorization letter or agreement prior to Closing); (I) take any action that would subject any director, officer, employee, agent, manager, consultant, advisor or other representative of the Company, it Subsidiaries or any their Affiliates to any actual or potential personal liability; (J) provide assistance, or execute or deliver any documents or information with respect to any Person other than solely the Company and its Subsidiaries, (K) prepare any pro forma financial statements; or (L) pay or incur any amount that would constitute Indebtedness of the Company or any of its Subsidiaries or would reduce the consideration that would otherwise be owed by Parent and Merger Sub under this Agreement. All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 6.17 or otherwise in connection with any Debt Financing or Preferred Equity Financing shall be kept confidential in strict accordance with an Acceptable Confidentiality Agreement. For the avoidance of doubt, in connection with any request for information from, or any request for any effort or action by, the Company, Parent shall provide copies of the then current draft of the applicable documentation to which such request relates, in each case, to the
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extent reasonably necessary for the Company to provide the requested information, make the requested effort or take the requested action. Other than the Parent Cost Exceptions, in no event shall the Company, its Subsidiaries or their respective Subsidiaries be required to pay any commitment or other fee or amount or incur any liability (including due to any act or omission by the Company, its Subsidiaries or any of their respective Affiliates or Representatives) or expense (including legal and accounting expenses) in connection with assisting Parent and Merger Sub in arranging the Debt Financing or the Preferred Equity Financing or as a result of any information provided by the Company, its Subsidiaries or any of their respective Affiliates or Representatives in connection with the Debt Financing or the Preferred Equity Financing. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.17(c) represent the sole obligations of the Company and its Subsidiaries and their respective Affiliates and Representatives with respect to cooperation in connection with the Debt Financing and the Preferred Equity Financing and no other provisions of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations.
(d) Subject to Parent’s indemnification obligations set forth in Section 6.17(e), the Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing and the Preferred Equity Financing so long as the Company has a reasonable opportunity to preview and consent to such use of logos and such logos (i) are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries, (ii) are used solely in connection with a description of the Company, its business and products or the Merger (including in connection with any marketing materials related to the Debt Financing), and (iii) are displayed and presented in a manner consistent with the Company’s past practice.
(e) The Company and its Subsidiaries and their respective Affiliates and Representatives shall have no liability whatsoever to TIBCO, Parent, Merger Sub, the Preferred Equity Issuer or any other Person in respect of any financial information or data or other information provided pursuant to this Section 6.17. If requested by the Company or a Representative thereof in writing, TIBCO, Parent and Merger Sub shall reimburse the Company or its applicable Representative on the Closing Date (or, if the Closing Date does not occur, promptly following termination of this Agreement in accordance with its terms and, with respect to any request of a Representative of the Company following Closing, promptly after receipt by such Representative of a written demand therefor) upon demand for all reasonable and documented out-of-pocket fees, costs and expenses (including reasonable attorneys’ and accountants’ fees and expenses and other professional fees and expenses), but in any case, other than the Parent Cost Exceptions, incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company, its Subsidiaries and their respective Representatives contemplated by this Section 6.17 and shall indemnify and hold harmless the Company, its Subsidiaries, their respective Affiliates and their respective Representatives (collectively, the “Financing Indemnitees”) from and against any and all costs, expenses, losses, damages, claims, judgments, fines, claims, losses, penalties, damages, interest, awards and liabilities directly or indirectly suffered or incurred by any of them (other than the Parent Cost Exceptions) in connection with the arrangement and consummation of the Financing (including any Alternative Financing), any information used in connection therewith and any misuse of logos or marks of the Company or its Subsidiaries pursuant to Section 6.17(d) above, in each case, other than to the extent any such costs, expenses, losses, damages, claims, judgments, fines, claims, losses, penalties, damages, interest, awards and liabilities are determined by a court of competent jurisdiction in a final and non-appealable judgment to directly arise as a result of bad faith, willful misconduct, fraud or gross negligence of any such Financing Indemnitees. Notwithstanding anything to the contrary in this Agreement, this Section 6.17(e) shall survive the consummation of the Merger and the Closing and any termination of this Agreement, and is intended to benefit, and may be enforced by, the Financing Indemnitees and their respective heirs, executors, estates, personal representatives, successors and assigns who are each third party beneficiaries of this Section 6.17(e).
(f) Notwithstanding this Section 6.17 or anything else to the contrary in this Agreement, TIBCO, Parent and Merger Sub each acknowledges, affirms and agrees that it is not a condition to the Closing or to any of its other obligations under this Agreement that TIBCO, Parent, Merger Sub or Preferred Equity Issuer obtain any debt,
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equity or other financing for or related to any of the transactions contemplated by this Agreement (including all or any portion of any Financing).
Section 6.18 Confidentiality. Notwithstanding anything to the contrary contained therein, the provisions of (i) the letter agreement dated as of November 23, 2021 between Vista Equity Partners Management, LLC and the Company and (ii) the letter agreement dated as of September 25, 2021 between Elliott Investment Management L.P. and the Company (together, the “Confidentiality Agreements”) shall continue in full force and effect for their term and shall apply with respect to all information provided by or on behalf of the Company or its Subsidiaries pursuant to this Agreement (including in connection with the Debt Financing); provided, however, that Parent and Merger Sub will be permitted to disclose such information on a need-to-know basis to any Debt Financing Sources (and their Representatives) that may become parties to the documents evidencing the Debt Financing (and, in each case, to their respective counsel and auditors) so long as each such Person (a) agrees for the benefit of the Company to be bound by either Confidentiality Agreement as if a party thereto or (b) is subject to other customary confidentiality undertakings set forth in the Financing Commitment Letters. The parties acknowledge and agree, for the avoidance of doubt, that Parent and Merger Sub are “Affiliates” of each of Vista Equity Partners Management, LLC and Elliott Investment Management L.P. for purposes of the Confidentiality Agreement.
Section 6.19 Director Resignations. Prior to the Closing, the Company shall use its reasonable best efforts to deliver to Parent resignations executed by each director of the Company in office immediately prior to the Effective Time, which resignations shall be effective at the Effective Time.
Section 6.20 Treatment of Company Debt.
(a) The Company shall, and shall cause its Subsidiaries to, following receipt of a written request from Parent to do so, obtain Company Payoff Letters (for the avoidance of doubt, in accordance with the definition thereof) and shall use reasonable best efforts to deliver all material notices in connection therewith and to take all other actions reasonably requested by Parent that are required to facilitate in accordance with the terms thereof the termination of all commitments outstanding under any Company Credit Agreement, the repayment in full of all obligations, if any, outstanding thereunder, the release of all Liens, if any, securing such obligations, and the release of any guarantees provided in connection therewith as of the Effective Time (collectively, a “Credit Agreement Termination”). The Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide to Parent not later than five Business Days prior to the Closing Date draft Company Payoff Letters and related payoff and lien release documentation for any Indebtedness contemplated by this Agreement to be paid in full and/or retired in connection with the Closing. Notwithstanding anything herein to the contrary, in no event shall this Section 6.20(a) require the Company or any of its Subsidiaries to cause a Credit Agreement Termination to be effective unless and until the Effective Time has occurred.
(b) The Company shall use reasonable best efforts to take all actions required by the Indenture to be performed by the Company prior to the Effective Time as a result of the execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement, including the giving of any notices that may be required prior to the Effective Time in connection with the Company Notes, the delivery to the Trustee of any certificates, opinions, documents or instruments required to be delivered prior to the Effective Time to the Trustee in connection with such transactions or otherwise required pursuant to the terms of the Indenture, and, if Parent so elects, the redemption and/or satisfaction and discharge of the Company Notes in accordance with the applicable provisions of the Indenture upon or after the Effective Time. The Company shall provide such assistance reasonably requested by Parent in connection with obtaining the execution of any instruments by the other parties required to execute such instruments and otherwise use reasonable best efforts to take any other actions reasonably requested by Parent (which shall not require any payment by the Company or its Subsidiaries) that are customary or necessary in connection therewith. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required pursuant to this Section 6.20(b) to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) not conditioned on or delivered substantially concurrently with the occurrence of the Effective Time.
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