(b) Covenants and Agreements. Parent and Merger Sub shall have performed and complied in all material respects with all covenants and other agreements in this Agreement required to be performed and complied with by Parent and Merger Sub at or prior to the Closing. The Company shall have a received a certificate to such effect signed on behalf of Parent and Merger Sub by a duly authorized officer of Parent and Merger Sub.
6.3. Additional Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, by Parent (it being understood that each such condition is solely for the benefit of Parent and may be waived by Parent in its sole discretion without notice, liability or obligation to any Person):
(a) Representations and Warranties. (i) The representations and warranties of the Company in Section 2.5(ii) shall be true and correct in all respects on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such date, (ii) the representations and warranties of the Company in Section 2.2(a) shall be true and correct in all respects on and as of the Agreement Date and shall be true and correct in all respects on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be true and correct with respect to such specified date) except for inaccuracies that do not have more than a de minimis effect (including more than a de minimis impact on the merger consideration payable hereunder), (iii) the representations and warranties of the Company in the first sentence of Section 2.1(a), Section 2.3(a), Section 2.3(d), the first sentence of Section 2.16 and Section 2.20 shall be true and correct in all material respects on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be true and correct with respect to such specified date) and (iv) all other representations and warranties of the Company in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification, shall be true and correct on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be true and correct with respect to such specified date), except where the circumstances causing the failure of such representations or warranties to be true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Parent shall have received a certificate to such effect signed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company.
(b) Covenants and Agreements. The Company shall have performed and complied in all material respects with all covenants and other agreements in this Agreement required to be performed and complied with by it at or prior to the Closing. Parent shall have received a certificate to such effect signed on behalf of the Company by the Chief Executive Officer and Chief Financial Officer of the Company.
(c) No Material Adverse Effect. Since the Agreement Date, there shall not have occurred any Material Adverse Effect that is continuing.
TERMINATION, AMENDMENT AND WAIVER
7.1. Termination. At any time prior to the Effective Time, this Agreement may be terminated whether prior to or after receipt of the Company Stockholder Approval (except as provided herein) only as follows (it being understood 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;
(b) by either Parent or the Company, if the Closing shall not have occurred on or before 11:59 p.m. (Pacific time) on March 20, 2025 (the “End Date”); provided that in no event shall a party be permitted to terminate this Agreement pursuant to this Section 7.1(b) if the failure to consummate the Merger by the End Date is principally caused by the material breach by such party of this Agreement;
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(c) by either Parent or the Company, if (i) a Governmental Entity of competent jurisdiction in the jurisdictions set forth on Schedule 6.1(b) of the Company Disclosure Schedules shall have issued an Order or taken any other action, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger, which Order or other action is final and non-appealable or (ii) any statute, rule, regulation or Order shall have been enacted, entered, enforced or deemed applicable to the Merger in the jurisdictions set forth on Schedule 6.1(b) of the Company Disclosure Schedules, in any case having the effect of restraining, enjoining or otherwise prohibiting the Merger; provided that in no event shall a party be permitted to terminate this Agreement pursuant to this Section 7.1(c) if the failure to consummate the Merger is principally caused by the material breach by such party of this Agreement;
(d) by either Parent or the Company, if the Company Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the Company Stockholder Meeting or at any adjournment or postponement thereof;
(e) by the Company, if Parent breaches or fails to perform any of its representations, warranties, covenants or agreements set forth in this Agreement such that any condition set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as a result of such breach or failure to perform; provided that (i) if such breach is curable within thirty (30) days (but not later than the End Date) by Parent, then the Company may not terminate this Agreement pursuant to this Section 7.1(e) for thirty (30) days (or until the End Date) after delivery of written notice from the Company to Parent of such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 7.1(e) if such breach or inaccuracy is cured during such period) and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 7.1(e) if the Company itself is in breach or has failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, and which breach or failure to perform would result in the failure of any condition set forth in Section 6.3(a) or Section 6.3(b);
(f) by Parent, if the Company breaches or fails to perform any of its representations, warranties, covenants or agreement set forth in this Agreement such that any condition set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as a result of such breach or failure to perform; provided that (i) if such breach or failure to perform is curable within thirty (30) days (but not later than the End Date) by the Company, then Parent may not terminate this Agreement pursuant to this Section 7.1(f) for thirty (30) days (or until the End Date) after delivery of written notice from Parent to the Company of such breach or failure to perform (it being understood that Parent may not terminate this Agreement pursuant to this Section 7.1(f) if such breach or failure to perform is cured during such period) and (ii) Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.1(f) if Parent itself is in breach or has failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement and which breach or failure to perform would result in the failure of any condition set forth in Section 6.2(a) or Section 6.2(b);
(g) by Parent, at any time prior to receiving the Company Stockholder Approval, if a Triggering Event shall have occurred; or
(h) by the Company, at any time prior to receiving the Company Stockholder Approval, if the Company Board has determined to enter into a definitive agreement to accept a Superior Proposal pursuant to Section 5.3(d); provided that the Company may terminate this Agreement pursuant to this Section 7.1(h) only if the Company: (i) has complied in all material respects with Section 5.3, (ii) concurrently enters into a definitive agreement pursuant to which such Superior Proposal is to be effected and (iii) has paid, or concurrently pays, to Parent all amounts due pursuant to Section 7.3(b) in accordance with the terms specified therein.
A “Triggering Event” shall be deemed to have occurred if: (A) a Change of Recommendation shall have been effected or occurred for any reason, (B) the Company shall have failed to convene or hold the Company Stockholder Meeting in accordance with Section 5.2, (C) the Company shall have breached any of the provisions of Section 5.2 or Section 5.3 in any material respect, (D) the Company Board fails to reaffirm the Company Board Recommendation within ten (10) Business Days after Parent requests in writing that such recommendation be reaffirmed in response to an Acquisition Proposal or material modification to an Acquisition Proposal that has been publicly announced or otherwise becomes publicly known (or if such request is delivered less than ten (10) Business Days prior to the Company Stockholder Meeting, no later than one Business Day after Parent so requests; provided that if such Acquisition Proposal is subsequently modified within such period, then the Company Board shall be required to
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reaffirm such recommendation no later than one (1) Business Day prior to the Company Stockholder Meeting), (E) the Company Board or the Company shall resolve or agree to do any of the foregoing or (F) a tender or exchange offer relating to securities of the Company shall have been commenced by a Person unaffiliated with Parent and the Company fails to send to its stockholders pursuant to Rule 14e-2 promulgated under the Securities Act, within ten (10) Business Days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Company unconditionally recommends rejection of such tender or exchange offer (the “Rejection Recommendation”) and reaffirms the Company Board Recommendation or fails to reaffirm the Rejection Recommendation in any press release published by the Company (or by any of its Affiliates or Company Representatives) or in any Schedule 14D-9 filed by the Company with the SEC, in each case relating to such tender offer or exchange offer, at any time after the foregoing ten (10) Business Day period.
(a) Manner of Termination. The party terminating this Agreement pursuant to Section 7.1 (other than pursuant to Section 7.1(a)) must deliver prompt written notice thereof to the other parties setting forth in reasonable detail the provision of Section 7.1 pursuant to which this Agreement is being terminated and the facts and circumstances forming the basis for such termination pursuant to such provision.
(b) Effect of Termination. In the event of any proper and valid termination of this Agreement as provided in Section 7.1 and this Section 7.2, this Agreement shall immediately upon the delivery of written notice thereof become void and of no further force or effect and there shall be no liability on the part of Parent or the Company or their respective affiliates or their respective Representatives; provided that (x) Section 5.5(a) (Confidentiality), this Section 7.2(b) (Effect of Termination), Section 7.3 (Expenses and Termination Fees) and Article VIII (General Provisions) shall remain in full force and effect and survive any termination of this Agreement and (y) nothing herein shall relieve any party hereto from liability in connection with any fraud or willful breach with respect to any of such party’s representations, warranties, covenants or other agreements set forth in this Agreement. For purposes of this Agreement, “willful breach” means a material breach that is a consequence of an act taken by the breaching party, or the failure by the breaching party to take an act it is required to take under this Agreement, in each case with actual knowledge that the taking of, or the failure to take, such act would, or would be reasonably expected to, cause a breach of this Agreement. In addition to the foregoing, no termination of this Agreement will affect the rights or obligations of any party pursuant to the Confidentiality Agreement, which rights, obligations and agreements will survive the termination of this Agreement in accordance with their respective terms.
(a) General. Except as set forth in this Section 7.3, all fees and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such fees and expenses whether or not the Merger is consummated.
(b) Company Termination Fee. The Company shall pay to Parent a cash amount equal to $1,000,000,000 (the “Company Termination Fee”) in the event that this Agreement is terminated: (i) pursuant to Section 7.1(g), (ii) pursuant to Section 7.1(h) or (iii) pursuant to either Section 7.1(b) (prior to the Company receiving the Company Stockholder Approval) or Section 7.1(d) or Section 7.1(f) and, in the case of this clause (iii), (A) prior to such termination, either an Acquisition Proposal with respect to the Company was publicly disclosed and not publicly withdrawn (or, in the case of Section 7.1(b), an Acquisition Proposal shall otherwise exist and shall not have been withdrawn) and (B) within 12 months of the termination of this Agreement, either an Acquisition Transaction with respect to the Company is consummated or the Company enters into a definitive agreement providing for an Acquisition Transaction. The Company shall pay to Parent the Company Termination Fee by wire transfer of immediately available funds to an account designated by Parent promptly but in no event later than: (x) for a termination described in clause (i), within one (1) Business Day after the date of such termination, (y) for a termination described in clause (ii), prior to or concurrently with such termination or (z) for a termination described in clause (iii), within one (1) Business Day after the earlier of the consummation of such Acquisition Transaction or the entry into such definitive agreement providing for an Acquisition Transaction. For purposes of this Section 7.3(b), all references to “15%” in the definition of “Acquisition Transaction” will be deemed to be references to “50%.”
(c) The Company acknowledges that (i) the agreements contained in Section 7.3(b) are an integral part of the Transactions, (ii) the amount of, and the basis for payment of, the fees and expenses described therein is
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reasonable and appropriate in all respects and (iii) without this agreement, Parent would not enter into this Agreement. Accordingly, if the Company fails to pay in a timely manner the Company Termination Fee due pursuant to Section 7.3(b), and, in order to obtain such payment, Parent commences a Legal Proceeding that results in a judgment for the amount set forth in Section 7.3(b) or any portion thereof, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amount set forth in Section 7.3(b) or portion thereof at the prime rate of Bank of America, N.A. in effect from time to time, or a lesser rate that is the maximum rate permitted by Applicable Legal Requirements, from the date such payment was required to be made hereunder through the date that such payment or portion thereof is actually received. Payment of the fees and expenses described in Section 7.3(b) shall not be in lieu of damages incurred in the event of breach of this Agreement. All payments due to Parent under this Section 7.3 shall be made by wire transfer of immediately available funds to an account designated by Parent.
(d) Parent Termination Fee. Parent shall pay to the Company a cash amount equal to $1,478,000,000 (the “Parent Termination Fee”) in the event that this Agreement is terminated: (i) pursuant to Section 7.1(c) due to an Order or any other action, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger, arising solely in connection with any applicable Antitrust Law in the jurisdictions set forth on Schedule 6.1(b) of the Company Disclosure Schedules or (ii) pursuant to Section 7.1(b) and all conditions to this Agreement are satisfied (other than conditions that by their terms are to be satisfied at the Closing) or waived (where permissible pursuant to Applicable Legal Requirements), other than those conditions set forth in Section 6.1(b) and Section 6.1(c) (solely in connection with any applicable Antitrust Law in the jurisdictions set forth on Schedule 6.1(b) of the Company Disclosure Schedules), then Parent shall pay to the Company the Parent Termination Fee by wire transfer of immediately available funds to an account designated by the Company promptly but in no event later than one (1) Business Day after the date of such termination.
(e) Parent acknowledges that (i) the agreements contained in Section 7.3(d) are an integral part of the Transactions, (ii) the amount of, and the basis for payment of, the fees and expenses described therein is reasonable and appropriate in all respects and (iii) without this agreement, the Company would not enter into this Agreement. Accordingly, if Parent fails to pay in a timely manner the Parent Termination Fee due pursuant to Section 7.3(d), and, in order to obtain such payment, the Company commences a Legal Proceeding that results in a judgment for the amount set forth in Section 7.3(d) or any portion thereof, Parent shall pay to the Company its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amount set forth in Section 7.3(d) or portion thereof at the prime rate of Bank of America, N.A. in effect from time to time, or a lesser rate that is the maximum rate permitted by Applicable Legal Requirements, from the date such payment was required to be made hereunder through the date that such payment or portion thereof is actually received. Payment of the fees and expenses described in Section 7.3(d) shall not be in lieu of damages incurred in the event of breach of this Agreement. All payments due to the Company under this Section 7.3 shall be made by wire transfer of immediately available funds to an account designated by the Company.
(f) The parties hereto acknowledge and agree that in no event shall the Company or Parent be required to pay the Company Termination Fee or the Parent Termination Fee, as applicable, on more than one occasion, whether or not the Company Termination Fee or the Parent Termination Fee, as applicable, may be payable under more than one provision of this Agreement at the same or at different time and the occurrence of different events.
7.4. Amendment. Subject to Applicable Legal Requirements and the other provisions of this Agreement, this Agreement may be amended by the parties hereto at any time pursuant to an instrument in writing signed on behalf of each of Parent, Merger Sub and the Company (pursuant to authorized action by the Company Board (or a committee thereof)); provided that, after the Company Stockholder Approval has been obtained, no such amendment shall be made to the extent that Applicable Legal Requirements would require further approval by the Company’s stockholders without such further stockholder approval.
7.5. Extension; Waiver. At any time prior to the Effective Time, any party hereto may, subject to Applicable Legal Requirements and except as otherwise set forth herein, (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (ii) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto or (iii) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any agreement on the part of a party
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