TERMINATION
Section 8.01 Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time only as follows (it being understood and agreed that this Agreement may not be terminated for any other reason or on any other basis):
(a) by mutual written agreement of the Company and Parent (notwithstanding any approval of this Agreement by the stockholders of the Company);
(b) by either Parent or the Company, upon written notice to the other party, if the Closing Date has not occurred on or before October 31, 2022 (the “End Date”) (notwithstanding any approval of this Agreement by the stockholders of the Company); provided, however, that (i) if the Marketing Period has commenced but not yet been completed as of the close of business on the fifth Business Day immediately prior to October 31, 2022, the End Date shall be automatically extended until five Business Days after the final day of the Marketing Period; provided that in no event shall the End Date be extended beyond January 31, 2023 and (ii) the End Date shall automatically be extended to January 31, 2023 if the conditions set forth in Section 7.01(b) (if the Order or Applicable Law relates to Antitrust Laws) and/or Section 7.01(c) shall not have been satisfied as of the close of business on the fifth Business Day immediately prior to October 31, 2022 (and the other conditions set forth in Article 7 have been satisfied or, to the extent permitted by Applicable Law, waived (other than those conditions that by their nature are to be satisfied by actions taken at the Closing; provided that each such condition would be satisfied if the Closing were on such date)) (and in the case of any such extension, any reference to the End Date in any provision of this Agreement shall be deemed to be a reference to the End Date as so extended); and provided further that the right to terminate this Agreement under this Section 8.01(b) shall not be available to any party whose material breach of any provision of this Agreement has been the cause of, or resulted in, the failure of the Merger to be consummated by the End Date;
(c) by either Parent or the Company, upon written notice to the other party, if any Governmental Authority of competent jurisdiction shall have issued a final and non-appealable Order, which remains in effect, permanently enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement (notwithstanding any approval of this Agreement by the stockholders of the Company); provided, however, that the party seeking to terminate this Agreement shall not be in material breach of its obligations under Section 6.12 that has been the cause of, or resulted in, the issuance of such final and non-appealable Order;
(d) by either Parent or the Company, upon written notice to the other party, if the Stockholder Approval has not been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof);
(e) by Parent, upon written notice to the Company, in the event of a breach by the Company of any representation, warranty, covenant or other agreement contained herein that (i) would result in any condition set forth in Section 7.01 or Section 7.02 not being satisfied and (ii) has not been cured prior to the earlier of the End Date or the thirtieth day following Parent’s delivery of written notice describing such breach to the Company; provided, however, that Parent shall not be entitled to terminate this Agreement pursuant to this Section 8.01(e) if either Parent or Merger Sub is in breach of its obligations under this Agreement such that the Company would be entitled to terminate this Agreement pursuant to Section 8.01(f);
(f) by the Company, upon written notice to Parent, in the event of a breach by Parent, Merger Sub or TIBCO of any representation, warranty, covenant or other agreement contained herein that (i) would result in any condition set forth in Section 7.01 or Section 7.03 not being satisfied and (ii) has not been cured prior to the earlier of the End Date or the thirtieth day following the Company’s delivery of written notice describing such breach to Parent; provided, however, that the Company shall not be entitled to terminate this Agreement pursuant
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to this Section 8.01(f) if the Company is in breach of its obligations under this Agreement such that Parent would be entitled to terminate this Agreement pursuant to Section 8.01(e);
(g) by Parent, upon written notice to the Company, at any time prior to receipt of the Stockholder Approval, if the Company Board shall have effected an Adverse Recommendation Change (it being understood and agreed that any written notice of the Company’s intention to make an Adverse Recommendation Change in accordance with Section 6.03(b) shall not, in and of itself, result in Parent having any termination rights pursuant to this Section 8.01(g));
(h) by the Company, upon written notice to Parent, at any time prior to receipt of the Stockholder Approval, if (i) the Company shall have received a Superior Proposal and the Company Board shall have effected an Adverse Recommendation Change in respect of such Superior Proposal and authorized the Company to enter into a definitive Alternative Acquisition Agreement to consummate the transaction contemplated by the Superior Proposal in accordance with Section 6.03, and immediately following such termination, the Company enters into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal, (ii) the Company has complied in all material respects with its obligations in Section 6.02 and Section 6.03 with respect to such Superior Proposal and (iii) substantially concurrently with such termination the Company pays the Company Termination Fee due to Parent in accordance with Section 9.04; or
(i) by the Company, upon written notice to Parent, if (A) the conditions set forth in Section 7.01 and Section 7.02 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing; provided that each such condition would be satisfied if the Closing were on such date, other than solely by virtue of Parent’s failure to effect the Closing) have been and continue to be satisfied or, to the extent permitted by Applicable Law, waived, (B) the Company has irrevocably notified Parent in writing that the Company stands ready, willing and able to consummate the Merger, (C) the Company shall have given Parent written notice at least five Business Days (or, if earlier, the Business Day immediately preceding the End Date) prior to such termination stating that the Company intends to terminate this Agreement pursuant to this Section 8.01(i) and (D) Parent and Merger Sub fail to consummate the Merger within such five Business Day period after the delivery by the Company to Parent of a notice to such effect (or, if earlier, the End Date).
Section 8.02 Effect of Termination. If this Agreement is validly terminated pursuant to Section 8.01, this Agreement shall become void and of no effect without liability of any party (or any Representative or any Financing Source Related Party of such party) to each other party hereto; provided, however, that the provisions of (i) this Section 8.02, (ii) Section 6.17(e), (iii) Section 6.18, (iv) Section 6.20(d), (v) the first sentence of Section 6.23 and (vi) Article 9 shall survive any termination hereof pursuant to Section 8.01. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, but subject to Section 9.04(b), the Company shall not be relieved or released from any liabilities or damages arising out of its Willful and Material Breach of any provision of this Agreement. Further, notwithstanding the foregoing or any other provision of this Agreement to the contrary, (A) the Confidentiality Agreement shall survive the termination of this Agreement and shall remain in full force and effect in accordance with its terms, (B) the Guarantees shall survive the termination of this Agreement and shall remain in full force and effect in accordance with their terms and (C) the parties to the Voting and Support Agreement shall retain any rights thereunder that survive the termination of this Agreement. Nothing in this Section 8.02 shall limit or otherwise affect a party’s right to specific performance as provided in Section 9.09.
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