Conditions of the Offer. Notwithstanding any other provision of the Offer, we are not required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to our obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for any Shares, and may terminate or amend the Offer, if before the expiration date of the Offer the Minimum Condition, the Merger Agreement Condition, the Section 203 Condition or the Antitrust Condition shall not have been satisfied, or if any of the following conditions exist: (1) any governmental authority of competent jurisdiction has (i) enacted, issued or promulgated any law that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer or the Merger or (ii) issued or granted any Order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality Condition"); (2) (i) any of the representations and warranties of 3PAR set forth in the HP Merger Agreement (other than those set forth in Sections 4.1 of the HP Merger Agreement (relating to organization and good standing of 3PAR), Section 4.2 of the Merger Agreement (relating to corporate power and enforceability), Section 4.6 of the HP Merger Agreement (relating to 3PAR's capitalization), Section 4.7(b)-(c) of the HP Merger Agreement (relating to capitalization of 3PAR's subsidiaries) and Section 4.26 of the HP Merger Agreement (relating to broker's and finder's fees)) are not be true and correct in all respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date), except for any failure to be so true and correct which has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, (ii) any of the representations and warranties set forth in Sections 4.1, 4.2 and 4.26 of the HP Merger Agreement are not be true and correct in all material respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date) or (iii) any of the representations and warranties set forth in Sections 4.6 and 4.7(b)-(c) of the HP Merger Agreement are not be true and correct in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 of the HP Merger Agreement, an increase in the aggregate value of the consideration payable in the Offer and the Merger and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date); provided, however, that, for purposes of determining the accuracy of the representations and warranties of 3PAR set forth in the HP Merger Agreement for purposes of clauses (i) and (ii) above, all materiality and "Company Material Adverse Effect" qualifications set forth in such representations and warranties shall be disregarded; (3) 3PAR has failed to perform in all material respects the obligations that are to be performed by it under the HP Merger Agreement at or prior to the expiration of the Offer; (4) a Company Material Adverse Effect has arisen or occurred following the execution and delivery of the HP Merger Agreement that is continuing as of immediately prior to the expiration of the Offer; (5) 3PAR shall have failed to furnish HP with a certificate dated as of the date of determination signed on its behalf by its Chief Executive Officer or Chief Financial Officer to the effect that the conditions set forth in clauses (2), (3) and (4) have occurred and been satisfied; or (6) the HP Merger Agreement has been properly and validly terminated in accordance with its terms. For purposes of the HP Merger Agreement, the term "Company Material Adverse Effect" means any change, effect, event, circumstance or development (each a "Change", and collectively, "Changes"), individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur: (i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally; (ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world; (iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business; (iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world; (v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world; (vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof); (vii) the announcement of the HP Merger Agreement or the pendency or consummation of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this clause (vii) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 of the Merger Agreement (relating to required governmental approvals); (viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement; (ix) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); and (x) any legal proceedings made or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out of the Merger or in connection with any other transactions contemplated by the Merger Agreement; and (xi) the payment by 3PAR of the Termination Fee (as defined in the Dell Merger Agreement) pursuant to the Dell Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses (i) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct business. The foregoing conditions are for the sole benefit of Parent and Purchaser. We expressly reserve the right, at any time and from time to time in our sole discretion, to waive or otherwise modify the terms and conditions of the Offer in any respect. Under the terms of the HP Merger Agreement, we would not be permitted to, without 3PAR's consent, (i) waive the Minimum Condition, the Antitrust Condition or the Illegality Condition, (ii) change the form of consideration to be paid in the Offer, (iii) decrease the Offer Price or the number of Shares sought in the Offer, (iv) extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions to the Offer other than those described in this Section 13, (vi) modify the conditions described in this Section 13 or (vii) amend any other term or condition to the Offer in a manner adverse to the holders of Shares. A failure by Parent and Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision of the OfferOffer (and as provided in the Merger Agreement), but subject to compliance with the terms and conditions of the Merger Agreement, we are not required to accept for payment payment, or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to our obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)Act, pay for any Shares, Shares validly tendered pursuant to the Offer and may terminate or amend not properly withdrawn prior to the expiration of the Offer, if before the expiration date of the Offer the Minimum Condition, the Merger Agreement Condition, the Section 203 Condition or the Antitrust Condition shall not have been satisfied, or if any of the following conditions existif:
(1a) any governmental authority of competent jurisdiction has (i) enacted, issued or promulgated any law that is in effect as of immediately prior to the expiration of the Offer, there are any waiting periods (including any extensions thereof) or any approvals or clearances applicable to the Offer or the consummation of the Merger under any applicable Antitrust Laws (as defined in the Merger Agreement), including suspensory filing requirements, waiting periods and has the effect of making required actions, consents that shall not have expired, or been terminated or obtained, as applicable, and that would make illegal the consummation of the Offer or the Merger illegal (the “Antitrust Condition”); or
(b) at any time on or which has after the effect date of the Merger Agreement and prior to the expiration of the Offer, any of the following conditions exists and is continuing (and not waived):
(i) there is a law or judgment, injunction, order or decree of any governmental authority with competent jurisdiction restraining, prohibiting or otherwise preventing making illegal the consummation of the Offer or the Merger or Merger; Table of Contents (ii) issued or granted any Order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality Condition");
(2A) (i) any of the representations and warranties of 3PAR set forth TECU contained in the HP Merger Agreement (other than those set forth in Sections 4.1 of the HP Merger Agreement (relating to organization and good standing of 3PAR), Section 4.2 4.05(a) of the Merger Agreement (relating to corporate power are not true and enforceability), Section 4.6 correct in all but de minimis respects at and as of the HP Merger Agreement Acceptance Time as if made at and as of such time (relating to 3PAR's capitalization), it being agreed that for purposes of Section 4.7(b)-(c4.05(a) of the HP Merger Agreement, any inaccuracy in which the applicable amounts as of a date of determination exceed the amounts set forth in Section 4.05(a) of the Merger Agreement by no more than 0.1% shall be deemed de minimis), (relating to capitalization B) the representations and warranties of 3PAR's subsidiaries) TECU contained in Sections 4.01, 4.02, and Section 4.26 4.20 of the HP Merger Agreement (relating to broker's and finder's fees)) are shall not be true and correct in all respects at and as of immediately prior to the expiration of the Offer with the same force and effect Acceptance Time as if made on at and as of such date time (unless other than representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct only as of such representation time), or warranty expressly relates to an earlier date, (C) the other representations and warranties of TECU contained in which case on the Merger Agreement (disregarding all materiality and Company Material Adverse Effect (as defined in the Merger Agreement) qualifications contained therein) shall not be true and correct at and as of the Acceptance Time as if made at and as of such earlier date)time (other than representations and warranties that by their terms address matters only as of another specified time, which will be true and correct only as of such time) except for any where the failure of such representations to be so true and correct which has not had and would does not have, individually or in the aggregate, a Company Material Adverse Effect, (ii) any of the representations and warranties set forth in Sections 4.1, 4.2 and 4.26 of the HP Merger Agreement are not be true and correct in all material respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date) or (iii) any of the representations and warranties set forth in Sections 4.6 and 4.7(b)-(c) of the HP Merger Agreement are not be true and correct in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 of the HP Merger Agreement, an increase in the aggregate value of the consideration payable in the Offer and the Merger and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date); provided, however, that, for purposes of determining the accuracy of the representations and warranties of 3PAR set forth in the HP Merger Agreement for purposes of clauses (i) and (ii) above, all materiality and "Company Material Adverse Effect" qualifications set forth in such representations and warranties shall be disregarded;
(3) 3PAR has failed to perform in all material respects the obligations that are to be performed by it under the HP Merger Agreement at or prior to the expiration of the Offer;
(4) a Company Material Adverse Effect has arisen or occurred following the execution and delivery of the HP Merger Agreement that is continuing as of immediately prior to the expiration of the Offer;
(5) 3PAR shall have failed to furnish HP with a certificate dated as of the date of determination signed on its behalf by its Chief Executive Officer or Chief Financial Officer to the effect that the conditions set forth in clauses (2), (3) and (4) have occurred and been satisfied; or
(6) the HP Merger Agreement has been properly and validly terminated in accordance with its terms. For purposes of the HP Merger Agreement, the term "Company Material Adverse Effect" means any change, effect, event, circumstance or development (each a "Change", and collectively, "Changes"), individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur:
(i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally;
(ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
(iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business;
(iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world;
(v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world;
(vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof);
(vii) the announcement of the HP Merger Agreement or the pendency or consummation of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this clause (vii) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 of the Merger Agreement (relating to required governmental approvals);
(viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement;
(ix) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); and
(x) any legal proceedings made or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out of the Merger or in connection with any other transactions contemplated by the Merger Agreement; and
(xi) the payment by 3PAR of the Termination Fee (as defined in the Dell Merger Agreement) pursuant to the Dell Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses (i) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct business. The foregoing conditions are for the sole benefit of Parent and Purchaser. We expressly reserve the right, at any time and from time to time in our sole discretion, to waive or otherwise modify the terms and conditions of the Offer in any respect. Under the terms of the HP Merger Agreement, we would not be permitted to, without 3PAR's consent, (i) waive the Minimum Condition, the Antitrust Condition or the Illegality Condition, (ii) change the form of consideration to be paid in the Offer, (iii) decrease the Offer Price or the number of Shares sought in the Offer, (iv) extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions to the Offer other than those described in this Section 13, (vi) modify the conditions described in this Section 13 or (vii) amend any other term or condition to the Offer in a manner adverse to the holders of Shares. A failure by Parent and Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision The obligation of the Offer, we are not required Purchaser to accept for payment or, and pay for Shares validly tendered (and not validly withdrawn) pursuant to the Offer is subject to any applicable rules and regulations the satisfaction of the SECconditions set forth in clauses “(a)” through “(i)” below (collectively, the “Offer Conditions”):
(a) there will have been validly tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) otherwise beneficially owned by Parent or any of its wholly owned subsidiaries (including Rule 14e-1(cPurchaser) under the Exchange Act (relating but excluding Shares tendered pursuant to our obligation to pay for or return tendered Shares promptly after termination or withdrawal guaranteed delivery procedures that have not yet been “received”, as defined by Section 251(h)(6)(f) of the OfferDGCL), pay for any Shares, and may terminate or amend the Offer, if before the expiration date represent one more Share than fifty percent (50%) of the Offer total number of Shares outstanding at the Minimum Condition, the Merger Agreement Condition, the Section 203 Condition or the Antitrust Condition shall not have been satisfied, or if any time of the following conditions exist:
(1) any governmental authority of competent jurisdiction has (i) enacted, issued or promulgated any law that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer or the Merger or (ii) issued or granted any Order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality “Minimum Condition"”);
(2) (i) any of the representations and warranties of 3PAR the Company as set forth in Section 3.1 (Due Organization; TABLE OF CONTENTS Subsidiaries, Etc), Section 3.2 (Certificate of Incorporation and Bylaws), Section 3.21 (Authority; Binding Nature of Agreement), Section 3.24 (Opinion of Financial Advisors) and Section 3.22 (Merger Approval) of the Merger Agreement will be true and correct in all material respects (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of the date of the Merger Agreement and at and as of the Expiration Date as if made on and as of the Expiration Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Merger Agreement will be disregarded and (B) the accuracy of those representations or warranties that address matters only as of a specific date will be measured (subject to the applicable materiality standard as set forth in this clause (b)(i)) only as of such date);
(ii) the representations and warranties of the Company as set forth in the HP Merger Agreement first sentence of Section 3.5 (other than those set forth in Sections 4.1 Absence of the HP Merger Agreement (relating to organization and good standing of 3PAR), Section 4.2 Changes) of the Merger Agreement (relating to corporate power and enforceability), Section 4.6 of the HP Merger Agreement (relating to 3PAR's capitalization), Section 4.7(b)-(c) of the HP Merger Agreement (relating to capitalization of 3PAR's subsidiaries) and Section 4.26 of the HP Merger Agreement (relating to broker's and finder's fees)) are not will be true and correct in all respects as of immediately prior to the expiration date of the Offer with Merger Agreement and at and as of the same force and effect Expiration Date as if made on and as of such the Expiration Date (it being understood that any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Merger Agreement will be disregarded);
(unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date), except for any failure to be so true and correct which has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, (iiiii) any of the representations and warranties of the Company as set forth in Sections 4.1subsections (a), 4.2 (c) (first sentence only) and 4.26 (d) of Section 3.3 (Capitalization, Etc.) of the HP Merger Agreement are not will be true and correct in all material respects except for any de minimis inaccuracies as of immediately prior to the expiration date of the Offer with Merger Agreement and at and as of the same force and effect Expiration Date as if made on and as of such date the Expiration Date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date) or (iii) any of the representations and warranties set forth in Sections 4.6 and 4.7(b)-(c) of the HP Merger Agreement are not be true and correct in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 of the HP Merger Agreement, an increase in the aggregate value of the consideration payable in the Offer and the Merger and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date); provided, however, it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Merger Agreement will be disregarded and (B) the accuracy of those representations or warranties that address matters only as of a specific date will be measured (subject to the applicable de minimis standard as set forth in this clause (b)(iii)) only as of such date);
(iv) the representations and warranties of 3PAR the Company set forth in Section 3.25 (Brokers) of the Merger Agreement will be true and correct in all respects as of the date of the Merger Agreement and at and as of the Expiration Date as if made on and as of the Expiration Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Merger Agreement will be disregarded); and
(v) the representations and warranties of the Company as set forth in the HP Merger Agreement (other than those referred to in clauses “(i)”, “(ii)”, “(iii)” and “(iv)” above) will be true and correct as of the date of the Merger Agreement and at and as of the Expiration Date as if made on and as of the Expiration Date, except where the failure of such representations and warranties to be so true and correct has not had, and would not reasonably be expected to have a Material Adverse Effect (it being understood that, for purposes of clauses determining the accuracy of such representations and warranties, (iA) and (ii) above, all materiality and "Company “Material Adverse Effect" ” qualifications set forth and other materiality qualifications contained in such representations and warranties shall will be disregarded, (B) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Merger Agreement will be disregarded and (C) the accuracy of those representations or warranties that address matters only as of a specific date will be measured (subject to the applicable materiality standard as set forth in this clause (b)(iv)) only as of such date);
(3c) 3PAR has failed to perform the Company will have complied with, or performed, in all material respects all of the obligations that are covenants and agreements it is required to be performed by it under the HP Merger Agreement comply with or perform at or prior to the expiration Expiration Date;
(d) Parent and Purchaser will have received a certificate executed on behalf of the Offer;
(4) a Company Material Adverse Effect has arisen or occurred following by the execution and delivery of the HP Merger Agreement that is continuing as of immediately prior to the expiration of the Offer;
(5) 3PAR shall have failed to furnish HP with a certificate dated as of the date of determination signed on its behalf by its Company’s Chief Executive Officer or and Chief Financial Officer to the effect confirming that the conditions set forth in clauses “(2b)”, “(c)” and “(g)” of above have been duly satisfied;
(e) any consent, approval or clearance with respect to, or terminations or expiration of any applicable TABLE OF CONTENTS mandatory waiting period (and any extensions thereof) imposed under the HSR Act, any foreign Antitrust Laws set forth on Schedule 6.2(c) of the Company Disclosure Schedule will have been obtained, will have been received or will have terminated or expired, as the case may be, and if applicable, all antitrust investigations by the FTC or DOJ have been closed; and in the event SBP, Parent, Purchaser or the Company receive a letter from the FTC or DOJ that the applicable waiting period will expire imminently or has expired but the FTC or DOJ is still investigating the transactions contemplated by the Merger Agreement, such antitrust investigation will be deemed closed thirty (30) days after receipt of such letter unless the FTC or DOJ issues a request to SBP, Parent, Purchaser or the Company seeking information or otherwise indicates that it continues to actively investigate the transaction, in which case, such antitrust investigation will be deemed open until the earlier of (A) the FTC or DOJ indicating that its investigation is closed, (3B) thirty (30) days after the parties have supplied any requested information to the FTC or DOJ if the FTC or DOJ has indicated that it has no further requests or questions for the parties, or (C) thirty (30) days after the FTC or DOJ has indicated its investigation is still open so long as it has not sought during that time any information from SBP, Parent, Purchaser or the Company about the transactions contemplated by the Merger Agreement;
(i) if a declaration or notification has been made to or requested by CFIUS with respect to transactions contemplated by the Merger Agreement, including the Offer and the Merger, the CFIUS Action with respect to such declaration or notification has occurred and (4iii) if any declaration, notification or report forms have been filed or are required to be filed with the applicable governmental body under any applicable Foreign Direct Investment Laws, including the NSIA, with respect to the transactions contemplated by the Merger Agreement, including the Offer and the Merger, the applicable consent, approval or clearance with respect to such declaration, notification or report has been obtained (each of the conditions in this clause “(f)”, the “Foreign Investment Condition”);
(g) there will not have been issued by any governmental body of competent jurisdiction and remain in effect any judgment, temporary restraining order, preliminary or permanent injunction or other order preventing the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Offer or the Merger nor will any action have been taken, or any law have been promulgated, entered, enforced, enacted, issued or deemed applicable to the Offer or the Merger by any governmental body which, directly or indirectly, prohibits or makes illegal the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Merger;
(h) since the date of the Merger Agreement, there will not have occurred and been satisfieda Material Adverse Effect; orand
(6i) the HP Merger Agreement has will not have been properly and validly terminated in accordance with its terms. For purposes of the HP Merger Agreement, the term "Company Material Adverse Effect" means any change, effect, event, circumstance or development (each a "Change", and collectively, "Changes"), individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur:
(i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally;
(ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
(iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business;
(iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world;
(v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world;
(vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof);
(vii) the announcement of the HP Merger Agreement or the pendency or consummation of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this clause (vii) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 of the Merger Agreement (relating to required governmental approvals);
(viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement;
(ix) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); and
(x) any legal proceedings made or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out of the Merger or in connection with any other transactions contemplated by the Merger Agreement; and
(xi) the payment by 3PAR of the Termination Fee (as defined in the Dell Merger Agreement) pursuant to the Dell Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses (i) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct business. The foregoing conditions are for the sole benefit of Parent and Purchaser. We expressly reserve the right, at any time and from time to time in our sole discretion, to waive or otherwise modify the terms and conditions of the Offer in any respect. Under the terms of the HP Merger Agreement, we would not be permitted to, without 3PAR's consent, (i) waive the Minimum Condition, the Antitrust Condition or the Illegality Condition, (ii) change the form of consideration to be paid in the Offer, (iii) decrease the Offer Price or the number of Shares sought in the Offer, (iv) extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions to the Offer other than those described in this Section 13, (vi) modify the conditions described in this Section 13 or (vii) amend any other term or condition to the Offer in a manner adverse to the holders of Shares. A failure by Parent and Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Offer to Purchase (Invox Pharma LTD)
Conditions of the Offer. Notwithstanding any other provision term of the OfferOffer or the Merger Agreement, we are Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to our Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any SharesShares tendered pursuant to the Offer and, and subject to the terms of the Merger Agreement, may delay the acceptance for payment of or payment for Shares or may terminate or amend the Offer, if before if:
(a) prior to the expiration date of the Offer the Minimum ConditionExpiration Time, the Merger Agreement Condition, the Section 203 Condition or the Antitrust Condition there shall not have been satisfied, or if validly tendered (and not properly withdrawn) at least one Share more than 50% of the number of Shares that are then issued and outstanding as of the expiration of the Offer (the “Minimum Tender Condition”); or
(b) any of the following conditions existexist or shall have occurred and be continuing at the Expiration Time:
(i) there shall be any Legal Restraint in effect preventing or prohibiting the consummation of the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement;
(ii) (A) (1) any governmental authority representation or warranty of competent jurisdiction has (i) enacted, issued or promulgated any law that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer or the Merger or (ii) issued or granted any Order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality Condition");
(2) (i) any of the representations and warranties of 3PAR ▇▇▇▇▇ set forth in Article IV of the HP Merger Agreement (other than those set forth in Sections 4.1 of Section 4.01 (Organization, Standing and Power) (but only with respect to the HP Merger Agreement (relating to organization and good standing of 3PARfirst sentence thereof), Section 4.2 4.02 (Corporate Authorization), Section 4.05 (Capitalization), Section 4.06 (Subsidiaries), Section 4.09(a) (Absence or Certain Changes or Events), Section 4.25 (Brokers and Finder’s Fees), Section 4.26 (Opinion of Financial Advisor) and Section 4.29 (No Vote Required)) shall not be true and correct as of the Agreement Date and at and as of the Offer Closing Time as if made on and as of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), other than for such failures to be true and correct that have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (as defined below) (for purposes of determining the satisfaction of this condition, without regard to any qualifications or exceptions contained therein as to “materiality” or “Company Material Adverse Effect”), (2) any representation or warranty of ▇▇▇▇▇ set forth in Section 4.01 (Organization, Standing and Power) (but only with respect to the first sentence thereof), Section 4.02 (Corporate Authorization), Section 4.06 (Subsidiaries), Section 4.25 (Brokers and Finder’s Fees), Section 4.26 (Opinion of Financial Advisor) shall not be true and correct in all material respects (provided that any inaccuracy in any representation or warranty set forth in Section 4.25 (Brokers and Finder’s Fees) constituting a liability greater than 0.5% of the Aggregate Consideration shall be deemed material) as of the Agreement Date and at and as of the Offer Closing Time as if made on and as of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (in which case on and as of such specified date), (3) any representation or warranty of ▇▇▇▇▇ set forth in Section 4.05 (Capitalization) of the Merger Agreement (relating shall not be true and correct other than inaccuracies which would not cause the Aggregate Consideration to corporate power and enforceability)increase by more than 0.5%, Section 4.6 as of the HP Merger Agreement Date and at and as of the Offer Closing Time as if made on and as of the Offer Closing Time, except to the extent such representation or warranty expressly relates to a specified date (relating to 3PAR's capitalization), in which case on and as of such specified date) and (4) any representation or warranty of ▇▇▇▇▇ set forth in Section 4.7(b)-(c4.09(a) (Absence or Certain Changes or Events) and Section 4.29 (No Vote Required) of the HP Merger Agreement (relating to capitalization of 3PAR's subsidiaries) and Section 4.26 of the HP Merger Agreement (relating to broker's and finder's fees)) are shall not be true and correct in all respects as of immediately prior to the expiration Agreement Date and at and as of the Offer with the same force and effect Closing Time as if made on and as of such date (unless the Offer Closing Time, except to the extent such representation or warranty expressly relates to an earlier date, a specified date (in which case on and as of such earlier specified date), except for any failure ;
(iii) ▇▇▇▇▇ shall have failed to perform in all material respects the obligations to be so true performed by it as of such time under the Merger Agreement, including without limitation ▇▇▇▇▇ obligations under Section 6.02 of the Merger Agreement;
(iv) Parent shall have failed to receive from ▇▇▇▇▇ a certificate, dated as of the date on which the Offer expires and correct which signed by an executive officer of ▇▇▇▇▇, certifying to the effect that the Offer Conditions set forth in clauses (ii), (iii), (v) and (vii) have been satisfied as of immediately prior to the expiration of the Offer;
(v) since the Agreement Date, any event, occurrence, development or state of circumstances, facts or condition has not occurred that has had and or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) any of the representations and warranties set forth in Sections 4.1, 4.2 and 4.26 of the HP Merger Agreement are not be true and correct in all material respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date) or (iii) any of the representations and warranties set forth in Sections 4.6 and 4.7(b)-(c) of the HP Merger Agreement are not be true and correct in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 of the HP Merger Agreement, an increase in the aggregate value of the consideration payable in the Offer and the Merger and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date); provided, however, that, for purposes of determining the accuracy of the representations and warranties of 3PAR set forth in the HP Merger Agreement for purposes of clauses (i) and (ii) above, all materiality and "Company Material Adverse Effect" qualifications set forth in such representations and warranties shall be disregarded;
(3vi) 3PAR has failed to perform in all material respects the obligations that are to be performed by it under the HP Merger Agreement at or prior to the expiration of the Offer;
(4) a Company Material Adverse Effect has arisen or occurred following the execution and delivery of the HP Merger Agreement that is continuing as of immediately prior to the expiration of the Offer;
(5) 3PAR shall have failed to furnish HP with a certificate dated as of the date of determination signed on its behalf by its Chief Executive Officer or Chief Financial Officer to the effect that the conditions set forth in clauses (2), (3) and (4) have occurred and been satisfied; or
(6) the HP Merger Agreement has been properly and validly terminated in accordance with its terms. For purposes of terms (the HP Merger Agreement, the term "Company Material Adverse Effect" means any change, effect, event, circumstance or development (each a "Change", and collectively, "Changes"), individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur:
(i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally;
(ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
(iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business;
(iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world;
(v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world;
(vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof“Termination Condition”);
(vii) the announcement aggregate number of Appraisal Shares shall represent 15% or more of the HP Merger Agreement or the pendency or consummation outstanding Shares of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this clause (vii) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 of the Merger Agreement (relating to required governmental approvals);▇▇▇▇▇; or
(viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement;
(ixA) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); and
(x) any legal proceedings made or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out of the Merger or in connection with any other transactions contemplated by the Merger Agreement; and
(xi) the payment by 3PAR of the Termination Fee Closing Cash (as defined in the Dell Merger Agreement) pursuant to is either (1) less than $55,000,000 if the Dell Offer Closing Time is on or before July 31, 2024 or (2) less than $53,000,000 if the Offer Closing Time is after July 31, 2024 (the “Minimum Cash Condition”); or (B) the Net Working Capital (as defined in the Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses ) is either (i1) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct business. The foregoing conditions are for the sole benefit of Parent and Purchaser. We expressly reserve the right, at any time and from time to time in our sole discretion, to waive or otherwise modify the terms and conditions of less than $1,800,000 if the Offer in any respect. Under the terms of the HP Merger AgreementClosing Time is on or before July 31, we would not be permitted to, without 3PAR's consent, 2024 or (i2) waive the Minimum Condition, the Antitrust Condition or the Illegality Condition, (ii) change the form of consideration to be paid in the Offer, (iii) decrease less than $2,000,000 if the Offer Price or Closing Time is after July 31, 2024 (the number of Shares sought in the Offer, (iv) extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions to the Offer other than those described in this Section 13, (vi) modify the conditions described in this Section 13 or (vii) amend any other term or condition to the Offer in a manner adverse to the holders of Shares. A failure by Parent and Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time“Minimum NWC Condition”).
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision The obligation of the Offer, we are not required Purchaser to accept for payment or, and (prior to the Offer Acceptance Time) pay for Shares validly tendered and not validly withdrawn pursuant to the Offer is subject to the satisfaction of the conditions set forth in clauses (a) through (k) below. Notwithstanding any other provisions of the Offer or the Merger Agreement to the contrary and subject to any applicable rules and regulations of the SEC, SEC including Rule 14e-1(c) under of the Exchange Act Act, Purchaser is not required to accept for payment or (relating prior to our obligation the Offer Acceptance Time) pay for, and may delay the acceptance for payment of, or (prior to pay for or return the Offer Acceptance Time) the payment for, any tendered Shares promptly after Shares, and, to the extent permitted by the Merger Agreement, may terminate the Offer: (i) upon termination or withdrawal of the Merger Agreement; and (ii) at any scheduled Expiration Date (subject to any extensions of the Offer), pay for any Shares, and may terminate or amend the Offer, if before the expiration date of the Offer if: (A) the Minimum Tender Condition, the Merger Agreement ConditionTermination Condition (described in clause (k) below), the Section 203 HSR Condition (described in clause (h) below), or the Antitrust Governmental Impediment Condition (described in clause (j) below) shall not be satisfied by one minute after 11:59 p.m., Eastern Time on the Expiration Date; or (B) any of the additional conditions described below has not been satisfied or waived in writing by Parent:
a. the Minimum Tender Condition shall not have been satisfied, or if any of the following conditions exist:;
(1) any governmental authority of competent jurisdiction has (i) enacted, issued or promulgated any law that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer or the Merger or (ii) issued or granted any Order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality Condition");
(2) (i) any of b. the representations and warranties of 3PAR the Company set forth in the HP Merger Agreement (other than those set forth in Sections 4.1 first sentence of the HP Merger Agreement (relating to organization and good standing of 3PARSection 3.01(a), Section 4.2 3.02, clauses (i) — (ii) of Section 3.03(c) (solely as such representations relate to the Company), Section 3.04, Section 3.21, Section 3.23 and Section 3.24 of the Merger Agreement (relating to corporate power and enforceability), Section 4.6 of the HP Merger Agreement (relating to 3PAR's capitalization), Section 4.7(b)-(c) of the HP Merger Agreement (relating to capitalization of 3PAR's subsidiaries) and Section 4.26 of the HP Merger Agreement (relating to broker's and finder's fees)) are not be true and correct in all respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date), except for any failure to be so true and correct which has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, (ii) any of the representations and warranties set forth in Sections 4.1, 4.2 and 4.26 of the HP Merger Agreement are not shall be true and correct in all material respects as of immediately prior to the expiration date of the Merger Agreement and at and as of the Offer with the same force and effect Acceptance Time as if made on and as of such date the Offer Acceptance Time (unless except to the extent any such representation or warranty expressly relates to an earlier datedate or period, in which case on and as of such earlier date) date or (iii) any of period);
c. the representations and warranties of the Company set forth in Sections 4.6 the first sentence of Section 3.03(a), Section 3.03(d) and 4.7(b)-(cSection 3.03(e) of the HP Merger Agreement are not shall be true and correct (except for de minimis inaccuracies) in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 as of the HP Merger Agreement, an increase in the aggregate value date of the consideration payable in the Offer Merger Agreement and the Merger at and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) as of immediately prior to the expiration of the Offer with the same force and effect Acceptance Time as if made on and as of such date the Offer Acceptance Time (unless except to the extent any such representation or warranty expressly relates to an earlier datedate or period, in which case on and as of such earlier datedate or period); provided, however, that, for purposes
d. the representation and warranty of determining the accuracy Company set forth in Section 3.06(b) of the Merger Agreement shall be true and correct in all respects;
e. the representations and warranties of 3PAR the Company set forth in the HP Merger Agreement (other than those referred to in clauses (b) through (d) above) shall be true and correct (disregarding for purposes this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of clauses the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier date or period, in which case as of TABLE OF CONTENTS such date or period), except where the failure of such representations and warranties to be so true and correct has not had, and would not reasonably be expected to have, a Material Adverse Effect;
(i) the Company shall not be in willful and material breach of its obligations under Section 5.03 of the Merger Agreement and (ii) abovewith respect to all other obligations, all materiality covenants and "agreements the Company Material Adverse Effect" qualifications set forth in such representations and warranties shall be disregarded;
(3) 3PAR has failed is required to comply with or perform in all material respects the obligations that are to be performed by it under the HP Merger Agreement at or prior to the expiration Offer Acceptance Time, the Company shall have complied with or performed in all material respects such obligations, covenants and agreements;
g. since the date of the Merger Agreement, there has not occurred a Material Adverse Effect that is continuing;
h. the waiting period applicable to the Offer under the HSR Act has expired or been terminated, and, if Parent and the Company have entered into an agreement with any governmental body regarding the timing of the consummation of the Offer;, that agreement permits such consummation;
(4) i. Parent and Purchaser have received a Company Material Adverse Effect has arisen or occurred following the execution and delivery certificate executed on behalf of the HP Merger Agreement that is continuing as of immediately prior to Company by the expiration of the Offer;
(5) 3PAR shall have failed to furnish HP with a certificate dated as of the date of determination signed on its behalf by its Chief Executive Officer or and the Chief Financial Officer to of the effect Company confirming that the conditions set forth in clauses paragraphs (2), b) through (3g) and (4) above have occurred and been satisfied; or
(6) j. there shall not have been issued by any governmental body of competent jurisdiction in any jurisdiction in which Parent or the HP Company has material business operations, and remain in effect, any judgment, temporary restraining order, preliminary or permanent injunction or other order, decree or ruling restraining, enjoining or otherwise preventing the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Offer or the Merger or subsequent integration, nor shall any legal requirement have been promulgated, enacted, issued or deemed applicable to the Offer or the Merger by any governmental body in any jurisdiction in which Parent or the Company has material business operations, which prohibits or makes illegal the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Merger or subsequent integration; and
k. the Merger Agreement has not been properly and validly terminated in accordance with its terms. For purposes of the HP Merger Agreement, the term "Company Material Adverse Effect" means any change, effect, event, circumstance or development (each a "Change", and collectively, "Changes"), individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur:
(i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally;
(ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
(iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business;
(iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world;
(v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world;
(vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof);
(vii) the announcement of the HP Merger Agreement or the pendency or consummation of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this clause (vii) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 of the Merger Agreement (relating to required governmental approvals);
(viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement;
(ix) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); and
(x) any legal proceedings made or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out of the Merger or in connection with any other transactions contemplated by the Merger Agreement; and
(xi) the payment by 3PAR of the Termination Fee (as defined in the Dell Merger Agreement) pursuant to the Dell Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses (i) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct business. The foregoing conditions are for the sole benefit of Parent and Purchaser. We expressly reserve , may be asserted by Parent or Purchaser regardless of the rightcircumstances giving rise to any such conditions (including any action or inaction by Parent or Purchaser), and (except for the Minimum Tender Condition, the Termination Condition, the HSR Condition and the Governmental Impediment Condition) may be waived by Parent and Purchaser, in whole or in part, at any time and from time to time time, in our their sole and absolute discretion, to waive or otherwise modify the terms and conditions of the Offer in any respect. Under the terms of the HP Merger Agreement, we would not be permitted to, without 3PAR's consent, (i) waive the Minimum Condition, the Antitrust Condition or the Illegality Condition, (ii) change the form of consideration to be paid in the Offer, (iii) decrease the Offer Price or the number of Shares sought in the Offer, (iv) extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions to the Offer other than those described in this Section 13, (vi) modify the conditions described in this Section 13 or (vii) amend any other term or condition to the Offer in a manner adverse to the holders of Shares. A The failure by Parent and or Purchaser at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right and each such right shall will be deemed an ongoing right that which may be asserted at any time and from time to timetime prior to the expiration of the Offer (except for conditions relating to government regulatory approvals).
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision term of the OfferOffer or the Merger Agreement, we are Purchasers shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to our Purchasers’ obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for any Shares, and may terminate or amend the Offer, if before the expiration date of Shares tendered pursuant to the Offer the Minimum Condition, the Merger Agreement Condition, the Section 203 Condition (and not theretofore accepted for payment or the Antitrust Condition paid for) unless there shall not have been satisfied, or if any of validly tendered in the following conditions exist:
Offer (1and not properly withdrawn) any governmental authority of competent jurisdiction has (i) enacted, issued or promulgated any law that is in effect as of immediately prior to the expiration of the Offer that number of Shares (excluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depository,” as such terms are defined by Section 251(h) of the DGCL) that, represent at least one Share more than 50% of the number of Shares that are then issued and has outstanding as of the effect expiration of making the consummation Offer, which we refer to as the Minimum Tender Condition. Furthermore, notwithstanding any other term of the Offer or the Merger illegal Agreement, Purchasers shall not be required to accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or which has paid for if, at the then-scheduled expiration of the Offer, any of the following conditions exists:
(i) there shall be any Legal Restraint in effect of preventing or prohibiting or otherwise preventing the consummation of the Offer or Offer, the Merger or any of the other transactions contemplated by the Merger Agreement or CVR Agreement;
(ii) issued or granted any Order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality Condition");
(2) (iA) any representation or warranty of the representations and warranties of 3PAR HilleVax set forth in the HP Merger Agreement Article IV (other than those set forth in Sections 4.1 of the HP Merger Agreement (relating to organization and good standing of 3PAR), Section 4.2 4.01(a) of the Merger Agreement (relating to corporate power and enforceabilityDue Organization; Subsidiaries), Section 4.6 of the HP Merger Agreement (relating to 3PAR's capitalization), Section 4.7(b)-(c) of the HP Merger Agreement (relating to capitalization of 3PAR's subsidiaries) and Section 4.26 of the HP Merger Agreement (relating to broker's and finder's fees)) are not be true and correct in all respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date), except for any failure to be so true and correct which has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, (ii) any of the representations and warranties set forth in Sections 4.1, 4.2 and 4.26 of the HP Merger Agreement are not be true and correct in all material respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date) or (iii) any of the representations and warranties set forth in Sections 4.6 and 4.7(b)-(c) of the HP Merger Agreement are not be true and correct in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 of the HP Merger Agreement, an increase in the aggregate value of the consideration payable in the Offer and the Merger and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date); provided, however, that, for purposes of determining the accuracy of the representations and warranties of 3PAR set forth in the HP Merger Agreement for purposes of clauses (i) and (ii) above, all materiality and "Company Material Adverse Effect" qualifications set forth in such representations and warranties shall be disregarded;
(3) 3PAR has failed to perform in all material respects the obligations that are to be performed by it under the HP Merger Agreement at or prior to the expiration of the Offer;
(4) a Company Material Adverse Effect has arisen or occurred following the execution and delivery of the HP Merger Agreement that is continuing as of immediately prior to the expiration of the Offer;
(5) 3PAR shall have failed to furnish HP with a certificate dated as of the date of determination signed on its behalf by its Chief Executive Officer or Chief Financial Officer to the effect that the conditions set forth in clauses (2), (3) and (4) have occurred and been satisfied; or
(6) the HP Merger Agreement has been properly and validly terminated in accordance with its terms. For purposes of the HP Merger Agreement, the term "Company Material Adverse Effect" means any change, effect, event, circumstance or development (each a "Change", and collectively, "Changes"), individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur:
(i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally;
(ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
(iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business;
(iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world;
(v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world;
(vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof);
(vii) the announcement of the HP Merger Agreement or the pendency or consummation of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this clause (vii) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 4.03 of the Merger Agreement (relating to required governmental approvalsAuthority; Binding Nature of Agreement);
(viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement;
(ix) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); and
(x) any legal proceedings made or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out Section 4.04 of the Merger or in connection with any other transactions contemplated by Agreement (No Vote Required), Section 4.05(a)(i) of the Merger Agreement (Non-Contravention), Section 4.06 of the Merger Agreement (Capitalization), Section 4.08(a)(ii) of the Merger Agreement (No Material Adverse Effect), Section 4.19 of the Merger Agreement (No Financial Advisors) and Section 4.25 of the Merger Agreement; and
(xi) the payment by 3PAR of the Termination Fee (as defined in the Dell Merger Agreement) pursuant to the Dell Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses (i) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct business. The foregoing conditions are for the sole benefit of Parent and Purchaser. We expressly reserve the right, at any time and from time to time in our sole discretion, to waive or otherwise modify the terms and conditions of the Offer in any respect. Under the terms of the HP Merger Agreement, we would not be permitted to, without 3PAR's consent, (i) waive the Minimum Condition, the Antitrust Condition or the Illegality Condition, (ii) change the form of consideration to be paid in the Offer, (iii) decrease the Offer Price or the number of Shares sought in the Offer, (iv) extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions to the Offer other than those described in this Section 13, (vi) modify the conditions described in this Section 13 or (vii) amend any other term or condition to the Offer in a manner adverse to the holders of Shares. A failure by Parent and Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision of Pursuant to the OfferMerger Agreement, we are not required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to our obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for any Shares, Shares and we may terminate or amend the Offer, Offer if before on the expiration date of the Offer the Minimum Condition, the Merger Agreement Condition, the Section 203 Condition or the Antitrust Condition shall not have been satisfied, or if Expiration Time any of the following conditions exist:has not been satisfied (or, to the extent legally permissible, waived):
(1) any governmental authority of competent jurisdiction has the Antitrust Condition;
(i) enacted, issued or promulgated any law that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer or the Merger or (ii) issued or granted any Order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality Condition");
(2) (i) any of the representations and warranties of 3PAR set forth OPAY contained in Section 5.1(a) (Organization and Qualification), the HP Merger Agreement first two sentences of Section 5.2(a), the first three sentences of Section 5.2(b) and in Section 5.2(d) (other than those set forth in Sections 4.1 of the HP Merger Agreement (relating to organization and good standing of 3PARCapitalization), Section 4.2 5.3(a) (Authority), Section 5.6(d) (SEC Filings; Financial Statements) and Section 5.18 (Board Approval) of the Merger Agreement (relating to corporate power and enforceability), Section 4.6 of the HP Merger Agreement (relating to 3PAR's capitalization), Section 4.7(b)-(c) of the HP Merger Agreement (relating to capitalization of 3PAR's subsidiaries) and Section 4.26 of the HP Merger Agreement (relating to broker's and finder's fees)) are not be were true and correct in all material respects as of immediately prior to the expiration date of the Merger Agreement and are true and correct in all material respects as of the Offer Closing with the same force and effect as if made on and as of such date the Offer Closing (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date), except for any failure to be so true and correct which has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, (ii) any of the those representations and warranties set forth in Sections 4.1, 4.2 and 4.26 which address matters only as of the HP Merger Agreement are not be an earlier date which must have been true and correct in all material respects as of immediately prior to the expiration of the Offer with the same force and effect as if made on and as of such date (unless such representation or warranty expressly relates to an earlier date, in which case on and as of such earlier date) or and (iiiii) any of the all other representations and warranties of OPAY set forth in Sections 4.6 and 4.7(b)-(c) of the HP Merger Agreement are not be were true and correct in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 as of the HP Merger Agreement, an increase in the aggregate value date of the consideration payable in the Offer Merger Agreement and the Merger are true and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) correct as of immediately prior to the expiration of the Offer with the same force and effect Closing as if made on at and as of such date the Offer Closing (unless such representation or warranty expressly relates to except for those representations and warranties which address matters only as of an earlier date, in date which case on must have been true and correct as of such earlier date); provided, however, that, disregarding for these purposes of determining the accuracy of the representations and warranties of 3PAR set forth in the HP Merger Agreement for purposes of clauses (i) and (ii) above, all materiality and "Company Material Adverse Effect" qualifications set forth any exception in such representations and warranties shall relating to materiality or a “Material Adverse Effect” (as defined below), except in the case of the matters referred to in this clause (ii) for such failures to be disregardedtrue and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on OPAY;
(3) 3PAR has failed to perform in all material respects since the obligations that are to be performed by it under the HP Merger Agreement at or prior to the expiration date of the OfferMerger Agreement, there has not occurred any effect that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect on OPAY;
(4) a Company Material Adverse Effect OPAY has arisen performed or occurred following complied in all material respects with all covenants required by the execution and delivery of the HP Merger Agreement that is continuing as of immediately to be performed or complied with by it on or prior to the expiration of the Offer;
(5) 3PAR shall have failed to furnish HP with Offer Closing and ACI has received a certificate dated as of an executive officer of OPAY confirming the date satisfaction of determination signed on its behalf by its Chief Executive Officer or Chief Financial Officer to the effect that the conditions set forth in clauses (2), (3) and (4) have occurred and been satisfied; orabove;
(5) no law or order issued by any court of competent jurisdiction or other governmental entity or other legal restraint or prohibition preventing the consummation of the Offer or the Merger is in effect;
(6) the HP Merger Litigation Condition;
(i) OPAY has not published or become obligated to publish a press release or filed or become obligated to file a report with the SEC to the effect that OPAY’s prior financial statements or reports filed with the SEC may no longer be relied upon or announced that the audit committee of the OPAY Board is conducting an investigation with respect to accounting matters, (ii) none of OPAY or any of its directors or executive officers has been named as a party to any criminal proceeding or been informed in writing that he or she has become the target of any investigation by a governmental entity of possible criminal conduct where such conduct relates to the business of OPAY, or (iii) OPAY has not failed to file its Form 10-K with the SEC for the fiscal year ended September 30, 2013, on or prior to December 16, 2013, including an unqualified opinion from Ernst & Young LLP on the effectiveness of OPAY’s internal control over financial reporting as of September 30, 2013, unless the Expiration Time occurred prior to December 16, 2013 but for this clause (7)(iii); and
(8) the Agreement has not been properly and validly terminated in accordance with its terms. For purposes of the HP Merger Agreement, the term "Company Material Adverse Effect" means any change, effect, event, circumstance or development (each a "Change", and collectively, "Changes"), individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur:
(i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally;
(ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
(iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business;
(iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world;
(v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world;
(vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof);
(vii) the announcement of the HP Merger Agreement or the pendency or consummation of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this clause (vii) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 of the Merger Agreement (relating to required governmental approvals);
(viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement;
(ix) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); and
(x) any legal proceedings made or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out of the Merger or in connection with any other transactions contemplated by the Merger Agreement; and
(xi) the payment by 3PAR of the Termination Fee (as defined in the Dell Merger Agreement) pursuant to the Dell Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses (i) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct business. The foregoing conditions are for the sole benefit of Parent ACI and Purchaser. We expressly reserve us and, except for the rightMinimum Condition, at any time which may be waived only with the prior written consent of OPAY, may be waived by ACI and from time to time us, in our sole discretion, in whole or in part at any applicable time or from time to waive or otherwise modify time, subject to the terms and conditions of the Offer in any respect. Under Merger Agreement and the terms applicable rules and regulations of the HP Merger Agreement, we would not be permitted to, without 3PAR's consent, (i) waive the Minimum Condition, the Antitrust Condition or the Illegality Condition, (ii) change the form of consideration to be paid in the Offer, (iii) decrease the Offer Price or the number of Shares sought in the Offer, (iv) extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions to the Offer other than those described in this Section 13, (vi) modify the conditions described in this Section 13 or (vii) amend any other term or condition to the Offer in a manner adverse to the holders of SharesSEC. A Our failure by Parent and Purchaser at any time to exercise Table of Contents any of the foregoing rights shall will not be deemed a waiver of any such right and each such right shall will be deemed an ongoing right that which may be asserted at any time and from time to time.
Appears in 1 contract
Conditions of the Offer. Notwithstanding any other provision term of the OfferOffer or the Merger Agreement, we are Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to our obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)Act, pay for, and may delay the acceptance for payment of or, subject to such rules and regulations, the payment for, any tendered Shares, and may to the extent permitted by the Merger Agreement, terminate the Offer (a) upon the termination of the Merger Agreement and (b) at any scheduled Offer Expiration Time (subject to Table of Contents any extensions of the Offer pursuant to the Merger Agreement) or amend the Offer, Offer if before the expiration date of the Offer the Minimum Condition, the Merger Agreement Condition, the Section 203 Condition or the Antitrust Condition shall not have been satisfied, or if any of the following conditions exist:
(1) any governmental authority of competent jurisdiction has (i) enacted, issued or promulgated any law that is in effect the Minimum Condition has not been satisfied as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer or the Merger one minute following 11:59 p.m., New York time, on such Expiration Date or (ii) issued or granted any Order that is in effect as of immediately prior the additional conditions to the expiration of Offer set forth below has not been satisfied or waived (to the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality Condition");
(2extent waivable) (i) any of in writing by Amgen: • the representations and warranties of 3PAR Five Prime set forth in Section 4.4(a) and the HP Merger Agreement first sentence of Section 4.4(c) (other than those set forth in Sections 4.1 of the HP Merger Agreement (relating to organization and good standing of 3PAR)Capitalization, Section 4.2 Etc.) of the Merger Agreement (relating to corporate power and enforceability), Section 4.6 of the HP Merger Agreement (relating to 3PAR's capitalization), Section 4.7(b)-(c) of the HP Merger Agreement (relating to capitalization of 3PAR's subsidiaries) and Section 4.26 of the HP Merger Agreement (relating to broker's and finder's fees)) are not be true and correct being accurate in all respects except for any de minimis inaccuracies at and as of immediately prior to the expiration of the Offer with the same force and effect Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date (unless such representation or warranty expressly relates to an earlier datetime, in which case on and as of such earlier dateother date or time), except for any failure to be so true and correct which has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, (ii) any of ; • the representations and warranties of Five Prime set forth in Sections 4.1Section 4.1 (Due Organization; Subsidiaries; Etc.), 4.2 Section 4.3 (Authority; Binding Nature of Agreement), Section 4.4(b) and (c) (Capitalization, Etc.) (other than the first sentence of Section 4.4(c)), Section 4.24 (Merger Approval) and Section 4.26 (Brokers and Other Advisors) of the HP Merger Agreement are not be true being accurate (disregarding for this purpose all “Material Adverse Effect” and correct “materiality” qualifications contained in such representations and warranties) in all material respects at and as of immediately prior to the expiration of the Offer with the same force and effect Acceptance Time as if made on and as of such time (except representations and warranties that by their terms speak specifically as of another date (unless such representation or warranty expressly relates to an earlier datetime, in which case on and as of such earlier date) other date or (iii) any of time); • the representations and warranties of Five Prime set forth in Sections 4.6 and 4.7(b)-(cSection 4.7(a) (Absence of Changes) of the HP Merger Agreement are not be true and correct being accurate in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 of the HP Merger Agreement, an increase in the aggregate value of the consideration payable in the Offer at and the Merger and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) as of immediately prior to the expiration of the Offer with the same force and effect Acceptance Time as if made on and as of such date time; • all of the other representations and warranties of Five Prime set forth in the Merger Agreement (unless other than those referred to in the first, second and third bullets above) being accurate (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representation or warranty expressly relates to an earlier date, representations and warranties) in which case all respects at and as of the Offer Acceptance Time as if made on and as of such earlier date); provided, however, that, for purposes of determining the accuracy of the time (except representations and warranties that by their terms speak specifically as of 3PAR another date or time, in which case as of such other date or time), except where any failure of any representation or warranty to be so accurate has not had, and would not reasonably be expected to have, a Material Adverse Effect (the conditions set forth in this bullet and in the HP Merger Agreement for purposes of clauses (i) first, second and (ii) third bullets above, all materiality and "Company Material Adverse Effect" qualifications set forth in such representations and warranties shall be disregarded;
(3) 3PAR has failed to perform collectively, the “Representations Condition”); • Five Prime having complied with or performed in all material respects the obligations that are all of its covenants and agreements it is required to be performed by it comply with or perform under the HP Merger Agreement at or prior to the expiration Offer Acceptance Time (such condition, the “Performance of Obligations Condition”); • since the date of the Offer;
(4) a Company Merger Agreement, there not having been any Material Adverse Effect has arisen or occurred following the execution and delivery of the HP Merger Agreement that is continuing as of immediately prior the Offer Acceptance Time (such condition, the “No Material Adverse Effect Condition”); • the waiting period (or any extension thereof) applicable to the expiration of Offer under the Offer;
(5) 3PAR shall have failed to furnish HP with HSR Act having expired or been terminated; • Amgen and ▇▇▇▇▇▇▇▇▇ having received a certificate dated as executed on behalf of the date of determination signed on its behalf Five Prime by its Chief Executive Officer or its Chief Financial Officer confirming that the Representations Condition, the Performance of Obligations Condition and the No Material Adverse Effect Condition have been duly satisfied; • there not having been issued by any court of competent jurisdiction or remain in effect any temporary, preliminary or permanent order preventing the acquisition of or payment for Shares pursuant to the effect that Offer, nor shall any action have been taken, or any law (other than any antitrust law) promulgated, entered, enforced, enacted, issued or deemed applicable to the conditions set forth in clauses Offer or the Merger by any Governmental Body which directly or indirectly enjoins, restrains or otherwise prohibits, or makes illegal, the acquisition of or payment for Shares pursuant to the Offer, or the consummation of the Merger (2the “No Legal Prohibition Condition”), (3) ; and (4) have occurred and been satisfied; or
(6) Table of Contents • the HP Merger Agreement has not having been properly and validly terminated in accordance with its termsterms (the “Termination Condition”). For purposes of the HP Merger AgreementThe foregoing conditions will be in addition to, and not a limitation of, the term "Company Material Adverse Effect" means any changerights and obligations of Amgen and Purchaser to extend, effect, event, circumstance or development (each a "Change", terminate and/or modify the Offer in accordance with the terms and collectively, "Changes"), individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur:
(i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally;
(ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
(iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business;
(iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world;
(v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world;
(vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof);
(vii) the announcement of the HP Merger Agreement or the pendency or consummation of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this clause (vii) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 of the Merger Agreement (relating to required governmental approvals);
(viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement;
(ix) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); and
(x) any legal proceedings made or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out of the Merger or in connection with any other transactions contemplated by the Merger Agreement; and
(xi) the payment by 3PAR of the Termination Fee (as defined in the Dell Merger Agreement) pursuant to the Dell Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses (i) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct businessapplicable law. The foregoing conditions are for the sole benefit of Parent Amgen and Purchaser. We expressly reserve Purchaser and, subject to the rightterms and conditions of the Merger Agreement and applicable law, may be waived by Amgen and Purchaser in whole or in part at any time and from time to time in our their sole discretion, to waive or otherwise modify the terms and conditions of the Offer in any respect. Under the terms of the HP Merger Agreement, we would not be permitted to, without 3PAR's consent, (i) waive the Minimum Condition, the Antitrust Condition or the Illegality Condition, (ii) change the form of consideration to be paid in the Offer, (iii) decrease the Offer Price or the number of Shares sought in the Offer, (iv) extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions to the Offer other than those described in this Section 13, (vi) modify the conditions described in this Section 13 or (vii) amend any other term or condition to the Offer in a manner adverse to the holders of Shares. A failure by Parent and Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Sources: Offer to Purchase (Amgen Inc)
Conditions of the Offer. For the purposes of this Section 11, capitalized terms used but not defined herein have the meanings set forth in the Merger Agreement. Notwithstanding any other provision of the OfferOffer or the Merger Agreement to the contrary, we are Purchaser shall not be required to accept for payment or, or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to our obligation to Act) pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for any Sharesfor, and may delay the acceptance for payment of, or (subject to any such rules and regulations) the payment for, any tendered Shares, and, to the extent permitted by the Merger Agreement, may terminate or amend the Offer, if before Offer (i) upon TABLE OF CONTENTS termination of the expiration date Merger Agreement and (ii) at any scheduled Expiration Date (subject to any extensions of the Offer pursuant to Section 1.1(c) of the Merger Agreement), if: (A) the Minimum ConditionCondition (described in clause (a) below), the Merger Agreement Condition, the Section 203 Termination Condition or the Antitrust Condition (described in clause (h) below) and conditions set forth in clauses (e) and (g) below shall not have been satisfied, be satisfied by one minute after 11:59 p.m. Eastern time on the Expiration Date; or if (B) any of the following additional conditions existset forth below shall not be satisfied or waived in writing by Celgene:
(1a) any governmental authority there shall have been validly tendered in the Offer and “received” by the “depository” (as such terms are defined in Section 251(h) of competent jurisdiction has the DGCL) and not validly withdrawn Shares that, considered together with all other Shares owned by Celgene and its “affiliates” (ias defined in Section 251(h) enactedof the DGCL), issued or promulgated any law that is in effect as represent one more Share than 50% of immediately prior to the total number of Shares outstanding at the time of the expiration of the Offer. For the avoidance of doubt, for purposes of determining whether the Minimum Condition has been satisfied, the Parties shall exclude Shares tendered in the Offer and has the effect of making the consummation pursuant to guaranteed delivery procedures that have not yet been “received” (as such term is defined in Section 251(h)(6)(f) of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer or the Merger or (ii) issued or granted any Order that is in effect as of immediately prior to the expiration of the Offer and has the effect of making the consummation of the Offer or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Merger (the "Illegality Condition"DGCL);
(2) (i) any of the representations and warranties of 3PAR set forth in the HP Merger Agreement (other than those Juno set forth in Sections 4.1 of the HP Merger Agreement 3.1(a) (relating to organization and good standing of 3PARDue Organization; Subsidiaries, Etc.), Section 4.2 3.2 (Certificate of Incorporation and Bylaws), 3.20 (Authority; Binding Nature of Agreement), 3.21 (Takeover Laws), 3.23 (Opinion of Financial Advisor) and 3.24 (Brokers and Other Advisors) of the Merger Agreement (relating to corporate power and enforceability), Section 4.6 of the HP Merger Agreement (relating to 3PAR's capitalization), Section 4.7(b)-(c) of the HP Merger Agreement (relating to capitalization of 3PAR's subsidiaries) and Section 4.26 of the HP Merger Agreement (relating to broker's and finder's fees)) are not shall be true and correct (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) in all material respects as of immediately prior to the expiration date of the Merger Agreement and at and as of the Offer with the same force and effect Acceptance Time as if made on and as of such date the Offer Acceptance Time (unless except to the extent any such representation or warranty expressly relates to an earlier datedate or period, in which case as of such date or period);
(ii) the representations and warranties of Juno set forth in the first sentence of Section 3.3(a) and clauses (i) – (iii) of Section 3.3(c) solely as such representations relate to Juno (Capitalization, Etc.) of the Merger Agreement shall be true and correct (except for de minimis inaccuracies) in all respects as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (except to the extent any such representation or warranty expressly relates to an earlier datedate or period, in which case as of such date or period), except for any failure to be so true and correct which has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, ;
(iiiii) any of the representations and warranties of ▇▇▇▇ set forth in Sections 4.1the first two sentences of Section 3.3(b) and the second sentence of Section 3.3(d) solely as such representations relate to Juno (Capitalization, 4.2 and 4.26 Etc.) of the HP Merger Agreement are not shall be true and correct in all material respects as of immediately prior to the expiration date of the Merger Agreement and at and as of the Offer with the same force and effect Acceptance Time as if made on and as of such date the Offer Acceptance Time (unless except to the extent any such representation or warranty expressly relates to an earlier datedate or period, in which case on and as of such earlier datedate or period);
(iv) or (iii) any of the representations and warranties of Juno set forth in Sections 4.6 and 4.7(b)-(cSection 3.5(a) (Absence of Changes) of the HP Merger Agreement are not shall be true and correct in all respects (other than inaccuracies that would not result in, (A) in the case of Section 4.6 as of the HP Merger Agreement, an increase in the aggregate value date of the consideration payable in the Offer Merger Agreement and the Merger at and (B) in the case of Section 4.7(b)-(c) of the HP Merger Agreement, a cost to HP, in excess of 2% of the aggregate value of the consideration payable in the Offer and the Merger) as of immediately prior to the expiration of the Offer with the same force and effect Acceptance Time as if made on and as of the Offer Acceptance Time with respect to the earlier period set forth in Section 3.5;
(v) the representations and warranties of Juno set forth in the Merger Agreement (other than those referred to in clauses (i) through (iv) above) shall be true and correct (disregarding for this purpose all “Material Adverse Effect” and “materiality” qualifications contained in such representations and warranties) as of the date of the Merger Agreement and at and as of the Offer Acceptance Time as if made on and as of the Offer Acceptance Time (unless except to the extent any such representation or warranty expressly relates to an earlier datedate or period, in which case on and as of such earlier datedate or period); provided, however, that, for purposes except where the failure of determining the accuracy of the representations and warranties of 3PAR set forth in the HP Merger Agreement for purposes of clauses (i) and (ii) above, all materiality and "Company Material Adverse Effect" qualifications set forth in such representations and warranties shall be disregarded;
(3) 3PAR has failed to perform in all material respects the obligations that are to be performed by it under the HP Merger Agreement at or prior to the expiration of the Offer;
(4) a Company Material Adverse Effect so true and correct has arisen or occurred following the execution and delivery of the HP Merger Agreement that is continuing as of immediately prior to the expiration of the Offer;
(5) 3PAR shall have failed to furnish HP with a certificate dated as of the date of determination signed on its behalf by its Chief Executive Officer or Chief Financial Officer to the effect that the conditions set forth in clauses (2), (3) and (4) have occurred and been satisfied; or
(6) the HP Merger Agreement has been properly and validly terminated in accordance with its terms. For purposes of the HP Merger Agreement, the term "Company Material Adverse Effect" means any change, effect, event, circumstance or development (each a "Change"not had, and collectively, "Changes")would not reasonably be expected to have, individually or in the aggregate, and taken together with all other Changes, that has had or would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of 3PAR and its subsidiaries, taken as a whole, provided that no Change resulting from or arising out of any of the following will be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur:
(i) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally;
(ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (A) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
(iii) conditions (or changes in such conditions) in the industries in which 3PAR and its subsidiaries conduct business;
(iv) political conditions (or changes in such conditions) in the United States or any other country or region in the world or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region in the world;
(v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in the United States or any other country or region in the world;
(vi) changes in law (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof);
(vii) the announcement of the HP Merger Agreement or the pendency or consummation of the transactions contemplated thereby, including (A) the identity of HP, (B) the loss or departure of officers or other employees of 3PAR or any of its subsidiaries resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (C) the termination or potential termination of (or the failure or potential failure to renew or enter into) any contracts with customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement, (D) any other negative development (or potential negative development) in 3PAR's relationships with any of its customers, suppliers, distributors or other business partners resulting from or arising out of the transactions contemplated by the HP Merger Agreement and (E) any decline or other degradation in 3PAR's customer bookings resulting from or arising out of the transactions contemplated by the HP Merger Agreement, provided that this Effect under clause (viib) will be disregarded to the extent "Company Material Adverse Effect" modifies or qualifies 3PAR's representations or warranties contained in Section 4.4 of the HP Merger Agreement (relating to non-contravention) or Section 4.5 of the Merger Agreement (relating to required governmental approvals);
(viii) any actions taken or failure to take action, in each case, to which HP has approved, consented to or requested; or compliance with the terms of, or the taking of any action required or contemplated by, the HP Merger Agreement; or the failure to take any action prohibited by the HP Merger Agreement;
(ix) changes in 3PAR's stock price or the trading volume of 3PAR's stock, in and of itself, or any failure by 3PAR to meet any public estimates or expectations of 3PAR's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by 3PAR to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes definition; TABLE OF CONTENTS (c) ▇▇▇▇ shall have complied with or failures, unless such changes performed in all material respects the covenants and agreements it is required to comply with or failures would otherwise be excepted from this definition); and
(x) any legal proceedings made perform at or brought by any of the current or former stockholders of 3PAR (on their own behalf or on behalf of 3PAR) against 3PAR, which arise out of the Merger or in connection with any other transactions contemplated by the Merger Agreement; and
(xi) the payment by 3PAR of the Termination Fee (as defined in the Dell Merger Agreement) pursuant to the Dell Merger Agreement; except to the extent such effects resulting from or arising out of the matters described in clauses (i) through (vi) above disproportionately affect 3PAR and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the industry in which 3PAR and its subsidiaries conduct business. The foregoing conditions are for the sole benefit of Parent and Purchaser. We expressly reserve the right, at any time and from time to time in our sole discretion, to waive or otherwise modify the terms and conditions of the Offer in any respect. Under the terms of the HP Merger Agreement, we would not be permitted to, without 3PAR's consent, (i) waive the Minimum Condition, the Antitrust Condition or the Illegality Condition, (ii) change the form of consideration to be paid in the Offer, (iii) decrease the Offer Price or the number of Shares sought in the Offer, (iv) extend the Offer, other than in a manner contemplated by the HP Merger Agreement, (v) impose conditions prior to the Offer other than those described in this Section 13, (vi) modify the conditions described in this Section 13 or (vii) amend any other term or condition to the Offer in a manner adverse to the holders of Shares. A failure by Parent and Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.Acceptance Time;
Appears in 1 contract