(c) If requested by Parent, the Company shall reasonably cooperate with Parent, prior to the Effective Time, to, with respect to the Company Notes and the related Indenture, (i) commence any of (1) one or more offers to purchase any or all of the outstanding series of Company Notes for cash (the “Offers to Purchase”) or (2) one or more offers to exchange any or all of the outstanding Company Notes for securities issued by any Parent Entity (the “Offers to Exchange”) and (ii) conduct consent solicitations to obtain from the requisite holders thereof consent to certain amendments to such Indenture (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Company Note Offers and Consent Solicitations”); provided that any such transaction shall be funded using consideration provided by Parent, Parent shall be responsible for all other liabilities incurred by the Company or any of its Subsidiaries in connection with any Company Notes Offers and Consent Solicitations, and no Offer to Purchase or Offer to Exchange shall be consummated prior to Closing. Any Company Note Offers and Consent Solicitations shall be made on customary terms and conditions (including price to be paid and conditionality) as are reasonably proposed by Parent, are reasonably acceptable to the Company and are permitted or required by the terms of such Company Notes, the Indenture and Applicable Laws, including SEC rules and regulations. Subject to the receipt of the requisite consents, in connection with any or all of the Consent Solicitations, the Company shall execute supplemental indentures to the Indenture in accordance with the terms thereof amending the terms and provisions of such Indenture in a form as reasonably requested by Parent and reasonably acceptable to the Company, which supplemental indentures shall not become effective until Closing. The Company shall promptly, upon the reasonable request of Parent, provide reasonable assistance and cooperation in connection with any Company Note Offers and Consent Solicitations (including but not limited to requesting, and using reasonable best efforts to cause, (i) the Company’s independent accountants (and certified independent auditors of any company recently acquired or whose acquisition by the Company is pending of whose financial statements would be required to be included in order for a registration statement filed by the Company to be declared effective) to provide customary consents for use of their reports to the extent required in connection with any Company Note Offers and Consent Solicitations and (ii) to furnish any customary certificates, legal opinions or negative assurance letters in connection with the Company Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Company Note Offers and Consent Solicitations will be selected by Parent and reasonably acceptable to the Company. The parties acknowledge and agree that the inability to make or complete any such Company Note Offers and Consent Solicitations shall not delay the Closing or relieve Parent or Merger Sub from their obligations to consummate the Merger as required under this Agreement.
(d) If the Closing does not occur, Parent and Merger Sub shall reimburse the Company promptly following termination of this Agreement in accordance with its terms upon demand for all reasonable and documented out-of-pocket fees, costs and expenses (including reasonable and documented attorneys’ and accountants’ or auditors’ fees) actually incurred by the Company or any of its Subsidiaries as a result of any actions taken by the Company with respect to its obligations under this Section 6.20 (including any Company Note Offers and Consent Solicitations) (other than the Parent Cost Exceptions) upon the written request of Parent as contemplated by this Section 6.20 and shall indemnify and hold harmless 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 in connection with the foregoing (other than the Parent Cost Exceptions) and any information used in connection therewith (other than the historical financial statements provided by or on behalf of the Company and its Subsidiaries), in each case, other than to the extent any such costs, expenses, losses, damages, claims, judgments, fines, penalties, 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. This Section 6.20(d) 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 6.20(d).
Section 6.21 FIRPTA Certificate. At or prior to the Closing, the Company shall deliver, or cause to be delivered, to Parent a certificate, duly executed by the Company, complying with Treasury Regulations
A-69
Section 1.1445-2(c)(3), together with a notice to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2) along with written authorization for Parent to deliver such notice to the Internal Revenue Service on behalf of the Company following the Closing Date, in each case, in a form and substance reasonably acceptable to Parent.
Section 6.22 No Employment Discussions. Without the prior consent of the Company Board (such consent not to be unreasonably withheld, conditioned or delayed), from the date of this Agreement until the Stockholder Approval has been obtained, neither Parent, Merger Sub nor any of their respective Affiliates, directly or indirectly, shall have any formal or informal discussions with respect to, or enter into any agreement, arrangement or understanding (in each case, whether oral or written), or authorize, commit or agree to enter into any agreement, arrangement or understanding (in each case, whether oral or written), described in Section 5.11 of this Agreement.
Section 6.23 Cash and Marketable Securities. The Company and Parent shall cooperate in good faith to agree, promptly following the date hereof and in no event later than 14 days prior to the Closing, on a schedule for the repatriation of cash (to the extent permitted by Applicable Law) in a commercially reasonable manner and the Company shall use commercially reasonable efforts to take the actions set forth on such schedule prior to the Closing, and if the Closing does not occur, Parent and Merger Sub shall reimburse the Company promptly following termination of this Agreement in accordance with its terms upon demand for all reasonable and documented out-of-pocket fees, costs and expenses (including reasonable attorneys’, accountants’ and consultancy fees) actually incurred by the Company or any of its Subsidiaries in connection with any actions taken by the Company with respect to its obligations under this sentence. At the reasonable request of Parent, the Company and its Subsidiaries shall use commercially reasonable efforts to sell any marketable securities (including notes, bonds or other similar securities) then owned by the Company and its Subsidiaries reasonably proximate to the Closing Date so as to permit the net proceeds of such sale to be used by or at the direction of Parent as a potential partial source for the payments contemplated by this Agreement, including the payment of expenses in connection with the transactions contemplated by this Agreement or payments in respect of Company Equity Awards under Article 2.
Section 6.24 Tender Offer(a). Upon written request by Parent prior to receipt of the Stockholder Approval and subject to the consent of the Company (which may be withheld in the Company’s reasonable discretion), the parties agree to cooperate and work in good faith to effectuate the transactions contemplated by this Agreement by means of a tender offer for all of the outstanding shares of Company Common Stock for the Merger Consideration (including effecting the Merger pursuant to Section 251(h) of the DGCL) and to make such reasonable and customary amendments to this Agreement as the parties mutually agree are necessary to reflect such structure; provided that (i) such tender offer structure shall not delay the Closing and (ii) the inability to make or complete any such tender offer shall not relieve Parent or Merger Sub from their obligations to consummate the Merger as required under this Agreement.
Section 6.25 Treatment of TIBCO Debt. To the extent required by the terms of the Debt Commitment Letter or the Preferred Equity Commitment Letter (as amended, restated, waived or otherwise modified by the applicable Debt Financing Sources or Preferred Equity Financing Sources), TIBCO shall, and shall cause its Subsidiaries to, terminate all commitments outstanding under any TIBCO Credit Agreements, repay in full of all obligations, if any, outstanding under such TIBCO Credit Agreements, release all Liens, if any, securing such obligations, and release all guarantees provided in connection therewith as of the Effective Time (collectively, a “TIBCO Credit Agreement Termination”). TIBCO shall use reasonable best efforts to obtain TIBCO Payoff Letters (for the avoidance of doubt, in accordance with the definition thereof) and deliver all material notices in connection therewith. TIBCO shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide to Company not later than five Business Days prior to the Closing Date draft TIBCO Payoff Letters and related payoff and lien release documentation for such Indebtedness. Notwithstanding anything herein to the contrary, in no event shall this Section 6.25 require TIBCO or any of its Subsidiaries to cause a TIBCO Credit Agreement Termination to be effective unless and until the Effective Time has occurred.
A-70
