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`EX-2.1 2 d46684dex21.htm EX-2.1
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`Exhibit 2.1
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`EXECUTION VERSION
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`AGREEMENT AND PLAN OF MERGER
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`by and among
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`ON SEMICONDUCTOR CORPORATION,
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`FALCON OPERATIONS SUB, INC.
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`and
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`FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC.
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`dated as of
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`November 18, 2015
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`1
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`PI 2001
`Semiconductor Components v. Power Integrations
`IPR2016-01600
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`EX-2.1
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`TABLE OF CONTENTS
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`ARTICLE I THE OFFER
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`Section 1.1. The Offer
`Section 1.2. Company Actions
`Section 1.3. Transfer Registration
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`ARTICLE II THE MERGER
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`Section 2.1. The Merger
`Section 2.2. Closing
`Section 2.3. Effective Time
`Section 2.4. Governing Documents
`Section 2.5. Officers, Directors and Managers of the Surviving Corporation
`Section 2.6. Effecting the Merger
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`ARTICLE III TREATMENT OF SECURITIES
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`Section 3.1. Treatment of Capital Stock
`Section 3.2. Payment for Securities; Surrender of Certificates
`Section 3.3. Dissenter’s Rights
`Section 3.4. Treatment of Company Equity Awards
`Section 3.5. Withholding
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`ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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`Section 4.1. Qualification, Organization, Subsidiaries, etc.
`Section 4.2. Capitalization
`Section 4.3. Corporate Authority
`Section 4.4. Governmental Consents; No Violation
`Section 4.5. SEC Reports and Financial Statements
`Section 4.6.
`Internal Controls and Procedures
`Section 4.7. No Undisclosed Liabilities
`Section 4.8. Absence of Certain Changes or Events
`Section 4.9. Compliance with Laws; Permits
`Section 4.10. Environmental Laws and Regulations
`Section 4.11. Employee Benefit Plans
`Section 4.12. Labor Matters
`Section 4.13. Certain Business Practices
`Section 4.14. Customs and Trade Laws
`Section 4.15. Tax Matters
`Section 4.16. Investigation; Litigation
`Section 4.17. Intellectual Property
`Section 4.18. Tangible Personal Property
`Section 4.19. Real Property
`Section 4.20. Material Contracts
`Section 4.21. Customers and Suppliers
`Section 4.22. Insurance
`Section 4.23. Information Supplied
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`Section 4.24. Opinions of Financial Advisor
`Section 4.25. State Takeover Statutes
`Section 4.26. Finders and Brokers
`Section 4.27. No Other Representations
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`ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB
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`Section 5.1. Qualification, Organization, Subsidiaries, etc.
`Section 5.2. Corporate Authority
`Section 5.3. Governmental Consents; No Violation
`Section 5.4. Compliance with Law
`Section 5.5. Absence of Litigation
`Section 5.6.
`Information Supplied
`Section 5.7. Availability of Financing
`Section 5.8. Finders and Brokers
`Section 5.9. Stock Ownership
`Section 5.10. No Acquisition Sub Activity
`Section 5.11. No Vote of Parent Stockholders
`Section 5.12. Solvency
`Section 5.13. No Other Representations
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`ARTICLE VI COVENANTS RELATING TO CONDUCT OF BUSINESS PENDING THE MERGER
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`Section 6.1. Conduct of Business by the Company Pending the Closing
`Section 6.2. Solicitation by the Company
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`ARTICLE VII ADDITIONAL AGREEMENTS
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`Section 7.1. Access; Confidentiality; Notice of Certain Events
`Section 7.2. Reasonable Best Efforts
`Section 7.3. Publicity
`Section 7.4. Directors’ and Officers’ Insurance and Indemnification
`Section 7.5. Takeover Statutes
`Section 7.6. Obligations of Acquisition Sub
`Section 7.7. Employee Benefits Matters
`Section 7.8. Rule 16b-3
`Section 7.9. Director Resignations
`Section 7.10. 14d-10 Matters
`Section 7.11. Stockholder Meeting
`Section 7.12. Stock Exchange De-listing
`Section 7.13. Financing
`Section 7.14. Financing Cooperation
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`ARTICLE VIII CONDITIONS TO CONSUMMATION OF THE MERGER
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`Section 8.1. Conditions to Each Party’s Obligations to Effect the Merger
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`ARTICLE IX TERMINATION
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`Section 9.1. Termination
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`Section 9.2.
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`Effect of Termination
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`ARTICLE X MISCELLANEOUS
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`Section 10.1. Amendment and Modification; Waiver
`Section 10.2. Non-Survival of Representations and Warranties
`Section 10.3. Expenses
`Section 10.4. Transfer Taxes
`Section 10.5. Notices
`Section 10.6.
`Interpretation
`Section 10.7. Counterparts
`Section 10.8. Entire Agreement; Third-Party Beneficiaries
`Section 10.9. Severability
`Section 10.10. Governing Law; Jurisdiction
`Section 10.11. Waiver of Jury Trial
`Section 10.12. Assignment
`Section 10.13. Enforcement; Remedies
`Section 10.14. No Recourse; Waiver of Claims
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`Annex I Certain Defined Terms
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`Annex II Conditions to the Offer
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`Exhibit A Debt Commitment Letter
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`AGREEMENT AND PLAN OF MERGER
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`This AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of November 18, 2015, is by and
`among ON Semiconductor Corporation, a Delaware corporation (“Parent”), Falcon Operations Sub, Inc., a Delaware
`corporation and a wholly owned subsidiary of Parent (“Acquisition Sub”) and Fairchild Semiconductor International, Inc.,
`a Delaware corporation (the “Company”). All capitalized terms used in this Agreement shall have the meanings ascribed
`to such terms in Annex I or as otherwise defined elsewhere in this Agreement unless the context clearly provides
`otherwise. Parent, Acquisition Sub and the Company are each sometimes referred to herein as a “Party” and collectively
`as the “Parties”.
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`RECITALS
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`WHEREAS, it is proposed that Parent shall cause Acquisition Sub to commence a tender offer (the “Offer”) to
`acquire all of the issued and outstanding shares of common stock, par value $0.01 per share, of the Company (the
`“Company Common Stock” or, such shares, “Company Shares”) for the consideration and upon the terms and subject to
`the conditions set forth herein;
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`WHEREAS, it is also proposed that, as soon as practicable following the consummation of the Offer, the Parties wish
`to effect the acquisition of the Company by Parent through the merger of Acquisition Sub with and into the Company,
`with the Company being the surviving entity (the “Merger”);
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`WHEREAS, this Agreement expressly requires the Merger to be governed by Section 251(h) of the General
`Corporation Law of the State of Delaware (the “DGCL”) and provides that the Merger shall be effected as soon as
`practicable following the consummation of the Offer if the Merger is effected under Section 251(h) of the DGCL (unless
`Section 251(h) of the DGCL is inapplicable);
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`WHEREAS, in connection with the Merger, each outstanding share of the Company Common Stock issued and
`outstanding immediately prior to the Effective Time (other than Cancelled Shares or Dissenting Shares) will be
`automatically converted into the right to receive the Merger Consideration upon the terms and conditions set forth in this
`Agreement and in accordance with the DGCL;
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`WHEREAS, the board of directors of the Company (the “Company Board of Directors”) (i) determined that the terms
`of this Agreement and the transactions contemplated hereby (the “Transactions”), including the Offer, are fair to, and in
`the best interests of, the Company and its stockholders, (ii) determined that it is in the best interests of the Company and
`its stockholders, and declared it advisable, to enter into this Agreement, (iii) adopted and approved the execution and
`delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements contained
`herein and the consummation of the Offer, the Merger and the other Transactions upon the terms and subject to the
`conditions contained herein and (iv) resolved to recommend that the holders of shares of Company Common Stock accept
`the Offer, tender their shares of Company Common Stock to Acquisition Sub pursuant to the Offer or, solely in the case
`that Section 251(h) of the DGCL is inapplicable, adopt the Agreement (the “Company Board Recommendation”);
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`WHEREAS, the boards of directors of Parent and Acquisition Sub have approved this Agreement and determined
`that this Agreement and the Transactions, including the Offer and the Merger, are advisable and fair to, and in the best
`interests of, Parent and Acquisition Sub and their respective stockholders; and
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`WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements in connection
`with the Offer and the Merger and also prescribe various conditions to the Offer and the Merger.
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`NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement and for
`other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as
`follows:
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`ARTICLE I
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`THE OFFER
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`Section 1.1. The Offer.
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`(a) Terms and Conditions of the Offer. Subject to applicable law and provided that this Agreement shall not have
`been validly terminated pursuant to Article IX, as promptly as practicable after the date hereof (but in no event later than
`December 4, 2015), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of
`Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase any and all of the Company Shares. In the Offer,
`each Company Share accepted by Acquisition Sub in accordance with the terms and subject to the conditions of the Offer
`shall be exchanged for the right to receive $20.00 in cash (the “Offer Price”). The Offer shall be made by means of an
`offer to purchase (the “Offer to Purchase”) that is disseminated to all of the holders of Company Shares and contains the
`terms and conditions set forth in this Agreement and in Annex II. Each of Parent and Acquisition Sub shall use its
`reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be
`subject only to:
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`(i) the condition (the “Minimum Condition”) that, prior to the expiration of the Offer, there be validly
`tendered and not withdrawn in accordance with the terms of the Offer a number of Company Shares that, together with the
`Company Shares then owned by Parent and Acquisition Sub (if any), represents at least a majority of all then outstanding
`Company Shares (excluding Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been
`“received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such
`procedures); and
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`(ii) the other conditions set forth in Annex II.
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`(b) Acquisition Sub expressly reserves the right to waive any of the conditions to the Offer and to make any
`change in the terms of, or conditions to, the Offer; provided, however, that notwithstanding the foregoing or anything to
`the contrary set forth herein, without the prior written consent of the Company in its sole discretion, Acquisition Sub shall
`not (and Parent shall not permit Acquisition Sub to) (i) waive the Minimum Condition, or
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`any of the conditions set forth in clauses (A), (B) or (D)(1) of Annex II and (ii) make any change in the terms of or
`conditions to the Offer that (A) changes the form of consideration to be paid in the Offer, (B) except as contemplated by
`Section 3.1(d), decreases the Offer Price or the number of Company Shares sought in the Offer, (C) extends the Offer,
`other than in a manner required by the provisions of Section 1.1(c), (D) imposes conditions to the Offer other than those
`set forth in Annex II, (E) modifies the conditions set forth in Annex II or (F) amends any other term or condition of the
`Offer in any manner that is adverse to the holders of Company Shares.
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`(c) Expiration and Extension of the Offer.
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`(i) Unless the Offer is extended pursuant to and in accordance with this Agreement, the Offer shall expire
`at midnight, New York City time, at the time that is one (1) minute following 11:59 p.m., New York City time, on the date
`that is twenty (20) business days (for this purpose calculated in accordance with Section 14d-1(g)(3) promulgated under
`the Exchange Act) after the date the Offer is first commenced (within the meaning of Rule 14d-2 promulgated under the
`Exchange Act). In the event that the Offer is extended pursuant to and in accordance with this Agreement, then the Offer
`shall expire on the date and at the time to which the Offer has been so extended.
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`(ii) Notwithstanding the provisions of Section 1.1(c)(i) or anything to the contrary set forth in this
`Agreement, without the consent of the Company:
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`(A) Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for any period
`required by any Law, or any rule, regulation, interpretation or position of the SEC or its staff or NASDAQ, in any such
`case, which is applicable to the Offer;
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`(B) in the event that any of the conditions to the Offer set forth in Annex II (including the Minimum
`Condition) have not been satisfied or waived as of any then scheduled expiration of the Offer, Acquisition Sub shall (and
`Parent shall cause Acquisition Sub to) extend the Offer for successive extension periods of up to ten (10) business days
`each (or, in the case that any such ten (10) business day extension would extend beyond the Outside Date, then such
`extension shall be made only to the second (2nd) business day prior to the Outside Date) in order to further seek to satisfy
`such conditions (including the Minimum Condition); and
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`(C) (1) in the event that (in the case of the initial Financing Extension Notice) all of the conditions to
`the Offer set forth in Annex II (including (x) the Minimum Condition and (y) the condition set forth in clause (D)(5) of
`Annex II that the Company shall have furnished Parent with a certificate signed on its behalf of any of the Company’s
`chairman of the board, its chief executive officer or any individual listed on Section A of the Company Disclosure Letter
`to the effect that the conditions set forth in clauses (D)(2), (D)(3) and (D)(4) of Annex II have not occurred) have been
`satisfied or waived as of any then scheduled expiration of the Offer, and (2) in the event that Parent and Acquisition Sub
`are in compliance in all material respects with their respective covenants and agreements under Section 7.13 and Parent or
`Acquisition Sub have been and remain unable to obtain proceeds of financing in an amount sufficient (together with any
`funds available to Parent or Acquisition Sub) to consummate the Transactions on the date on which the Acceptance Time
`would otherwise occur (such financing, the “Requisite Financing”), Acquisition Sub shall be entitled (A) by written notice
`from the Chief Executive Officer or Chief Operating Officer of Parent to the Company no later than 8:00 a.m. Eastern
`Time on the next business day after the then scheduled expiration date of the Offer that certifies that (1) Parent and
`Acquisition Sub have complied in all material respects with their respective covenants and agreements in Section 7.13,
`(2) Parent has been and remains unable to obtain the Requisite Financing as of the date that the Acceptance Time would
`otherwise be required to occur and (3) Acquisition Sub is delivering such notice solely to extend the Offer to obtain the
`Requisite Financing (such certified written notice, a “Financing Extension Notice”), to extend the Offer to such later time
`specified by Parent in the Financing Extension Notice (except that in no event shall such extension exceed ten
`(10) business days and Parent and Acquisition Sub shall not be entitled to extend the expiration to a date that is later than
`two (2) business days prior to November 18, 2016). Acquisition Sub shall be permitted to deliver multiple Financing
`Extension Notices to the Company (except that in no event shall any extension pursuant to any such Financing Extension
`Notice exceed ten (10) business days and Parent shall not be entitled to extend the expiration to a date that is later than two
`(2) business days prior to November 18, 2016);
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`provided, however, that any such extension shall not be deemed to impair, limit, or otherwise restrict in any manner the
`right of the Parties to terminate this Agreement pursuant to the terms of Article IX and if, at the time of the applicable
`expiration date, all of the conditions to the Offer set forth on Annex II (other than the Minimum Condition) are satisfied,
`all comments of the SEC or its staff applicable to the Offer or the Offer Documents have been resolved and no rule,
`regulation or interpretation of the SEC or its staff applicable to the Offer would require Parent or Acquisition Sub to
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`extend the Offer, then Acquisition Sub shall only be required to extend the Offer and its expiration date beyond the then-
`existing expiration date for up to two additional periods not to exceed an aggregate of twenty (20) business days to permit
`the Minimum Condition to be satisfied.
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`(iii) Neither Parent nor Acquisition Sub shall extend the Offer or provide a “subsequent offering period”
`within the meaning of Rule 14d-11 promulgated under the Exchange Act in any manner other than pursuant to and in
`accordance with the provisions of Section 1.1(c)(ii) without the prior written consent of the Company.
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`(iv) Neither Parent nor Acquisition Sub shall terminate or withdraw the Offer prior to the then scheduled
`expiration of the Offer unless this Agreement is validly terminated in accordance with Article IX, in which case
`Acquisition Sub shall (and Parent shall cause Acquisition Sub to) irrevocably and unconditionally terminate the Offer
`promptly (but in no event more than one (1) business day) after such termination of this Agreement.
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`(d) Payment for Company Shares. On the terms and subject to the conditions set forth in this Agreement and the
`Offer, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment, and pay for, all Company
`Shares that are validly tendered and not withdrawn pursuant to the Offer promptly (within the meaning of Section 14e-1(c)
`promulgated under the Exchange Act) after the expiration of the Offer (as it may be extended in accordance with
`Section 1.1(c)(ii)) (such time, the “Acceptance Time”). Without limiting the generality of the foregoing, Parent shall
`provide or cause to be provided to Acquisition Sub on a timely basis the funds necessary to pay for any Company Shares
`that Acquisition Sub becomes obligated to purchase pursuant to the Offer; provided, however, that without the prior
`written consent of the Company, Acquisition Sub shall not accept for payment or pay for any Company Shares if, as a
`result, Acquisition Sub would acquire less than the number of Company Shares necessary to satisfy the Minimum
`Condition. The consideration in the Offer payable in respect of each Company Share validly tendered and not withdrawn
`pursuant to the Offer shall be paid net to the holder thereof in cash subject to reduction for any applicable withholding
`Taxes payable in respect thereof. If payment of the Offer Price is to be made to a Person other than the Person in whose
`name the surrendered certificate evidencing Company Shares is registered on the stock transfer books of the Company, it
`shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper
`form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Taxes required
`by reason of the payment of the Offer Price to a Person other than the registered holder of the certificate surrendered, or
`shall have established to the satisfaction of Acquisition Sub that such Taxes either have been paid or are not applicable.
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`(e) Schedule TO; Offer Documents.
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`(i) As soon as practicable on the date the Offer is first commenced (within the meaning of Rule 14d-2
`promulgated under the Exchange Act), Parent and Acquisition Sub shall:
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`(1) prepare and file with the SEC a Tender Offer Statement on Schedule TO (together with all
`amendments and supplements thereto, and including all exhibits thereto, the “Schedule TO”) with respect to the Offer,
`which Schedule TO shall contain (A) as an exhibit or incorporate by reference the Offer to Purchase and forms of the
`letter(s) of transmittal and summary advertisement, if any, and other customary ancillary documents, in each case, in
`respect of the Offer and (B) notice to holders of Company Shares informing such holders of their rights of appraisal in
`respect of such Company Shares in accordance with Section 262 of the DGCL (together with all amendments and
`supplements thereto, the “Offer Documents”);
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`(2) deliver a copy of the Schedule TO, including all exhibits thereto, to the Company at its principal
`executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
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`(3) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange
`Act, and mail by means of first class mail a copy of the Schedule TO, to NASDAQ in accordance with Rule 14d-3(a)
`promulgated under the Exchange Act; and
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`(4) cause the Offer Documents to be disseminated to all holders of Company Shares as and to the
`extent required by the Exchange Act.
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`(ii) Subject to the provisions of Section 6.2, the Offer Documents may include a description of the
`determinations, approvals and recommendations of the Company Board of Directors set forth in Section 1.2(a) that relate
`to the Offer. The Company shall furnish in writing to Parent and Acquisition Sub all information concerning the Company
`and its Subsidiaries that is required by applicable Law or reasonably requested by Acquisition Sub or Parent to be included
`in the Offer Documents so as to enable Parent and Acquisition Sub to comply with their obligations under this Section 1.1
`(e). Parent, Acquisition Sub and the Company shall cooperate in good faith to determine the information regarding the
`Company that is necessary to include in the Offer Documents in order to satisfy applicable Law. Each of Parent,
`Acquisition Sub and the Company shall promptly correct any information provided by it or any of its respective
`Representatives for use in the Offer Documents to the extent that such information shall have become false or misleading
`in any material respect. Parent and Acquisition Sub shall take all steps necessary to cause the Offer Documents, as so
`corrected, to be filed with the SEC and to be disseminated to the holders of Company Shares, in each case as and to the
`extent required by applicable Law, or by the SEC or its staff or NASDAQ. Parent and Acquisition Sub shall provide the
`Company and its counsel a reasonable opportunity to review and comment on the Offer Documents prior to the filing
`thereof with the SEC, and Parent and Acquisition Sub shall give reasonable and good faith consideration to any comments
`made by the Company and its counsel. Parent and Acquisition Sub shall (A) provide in writing to the Company and its
`counsel any and all written comments that Parent, Acquisition Sub or their counsel may receive from the SEC or its staff
`with respect to the Offer Documents promptly after such receipt, (B) provide a reasonably detailed description of any oral
`comments Parent, Acquisition Sub or their counsel may receive from the SEC or its staff with respect to the Offer
`Documents promptly after such receipt, and (C) unless there has been a Change of Recommendation, provide the
`Company and its counsel a reasonable opportunity to participate in the formulation of any response to any such comments
`of the SEC or its staff (including a reasonable opportunity to review and comment on any such response, to which Parent
`and Acquisition Sub shall give reasonable and good faith consideration to any comments made by the Company and its
`counsel) and, to the extent permitted by applicable Law and the SEC and its staff, to participate in any discussions with the
`SEC or its staff regarding any such comments.
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`Section 1.2. Company Actions.
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`(a) Company Determinations, Approvals and Recommendations. The Company hereby approves and consents to
`the Offer and represents and warrants to Parent and Acquisition Sub that, at a meeting duly called and held prior to the
`date hereof, the Company Board of Directors has, upon the terms and subject to the conditions set forth herein:
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`(i) determined that the terms of the Offer, the Merger and the other Transactions are fair to, and in the best
`interests of, the Company and its stockholders;
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`(ii) determined that it is in the best interests of the Company and its stockholders, and declared it
`advisable, to enter into this Agreement;
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`(iii) adopted and approved the execution and delivery by the Company of this Agreement, the performance
`by the Company of its covenants and agreements contained herein and the consummation of the Offer, the Merger and the
`other Transactions upon the terms and subject to the conditions contained herein; and
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`(iv) resolved to make the Company Board Recommendation; provided, however, that the Company Board
`of Directors may effect a Change of Recommendation in accordance with the terms of Section 6.2.
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`The Company hereby consents to the inclusion of the foregoing determinations and approvals and the Company Board
`Recommendation in the Offer Documents, unless the Company Board of Directors has effected a Change of
`Recommendation in accordance with the terms of Section 6.2.
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`(b) Schedule 14D-9. The Company shall (i) file with the SEC concurrently with the filing by Parent and
`Acquisition Sub of the Schedule TO, a Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer
`(together with all amendments and supplements thereto, and including all exhibits thereto, the “Schedule 14D-9”) and
`(ii) cause the Schedule 14D-9 (together with all Offer Documents) to be mailed to the holders of Company Shares
`promptly after commencement of the Offer. To the extent reasonably requested by the Company, Parent shall cause the
`Schedule 14D-9 to be mailed or otherwise disseminated to the holders of Company Shares together with the Offer
`Documents. Each of Parent and Acquisition Sub shall furnish in writing to the Company all information concerning Parent
`and Acquisition Sub that is required by applicable Law to be included in the Schedule 14D-9 so as to enable the Company
`to comply with its obligations under this Section 1.2(b). Parent, Acquisition Sub and the Company shall cooperate in good
`faith to determine the information regarding the Company that is necessary to include in the Schedule 14D-9 in order to
`satisfy applicable Law. Each of the Company, Parent and Acquisition Sub shall promptly correct any information
`provided by it or any of its respective directors, officers, employees, affiliates, agents or other representatives for use in
`the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material
`respect. The Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected, to be filed with the SEC
`and disseminated to the holders of Company Shares, in each case as and to the extent required by applicable Law,
`including by
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`setting the date of the list used to determine Persons to whom the Offer Documents and Schedule 14D-9 are first
`disseminated as the record date for the purpose of receiving the notice required by Section 262(d) of the DGCL. The
`Company shall cause the Schedule 14D-9 to comply as to form in all material respects with requirements of applicable
`Law. Unless the Company Board of Directors has effected a Change of Recommendation, the Company shall provide
`Parent, Acquisition Sub and their counsel a reasonable opportunity to review and comment on the Schedule 14D-9 prior to
`the filing thereof with the SEC, and the Company shall give reasonable and good faith consideration to any comments
`made by Parent, Acquisition Sub and their counsel (it being understood that Parent, Acquisition Sub and their counsel
`shall provide any comments thereon as soon as reasonably practicable). Unless the Company Board of Directors has
`effected a Change of Recommendation, the Company shall (A) provide in writing to Parent, Acquisition Sub and their
`counsel any written comments that the Company or its counsel may receive from the SEC or its staff with respect to the
`Schedule 14D-9 promptly after such receipt, (B) provide a reasonably detailed description of any oral comments that the
`Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9s promptly after such
`receipt, and (C) unless the Company Board of Directors has effected a Change of Recommendation, the Company shall
`provide Parent, Acquisition Sub and their counsel a reasonable opportunity to participate in the formulation of any
`response to any such comments of the SEC or its staff (including a reasonable opportunity to review and comment on any
`such response, to which the Company shall give reasonable and good faith consideration to any comments made by
`Parent, Acquisition Sub and their counsel) and, to the extent permitted by applicable Law and the SEC and its staff, to
`participate in any discussions with the SEC or its staff regarding any such comments. Unless the Company Board of
`Directors has effected a Change of Recommendation, the Company shall include the Company Board Recommendation in
`the Schedule 14D-9. The Schedule 14D-9 shall include the notice and other information required by Section 262(d) of the
`DGCL.
`
`(c) Company Information. In connection with the Offer, the Company shall, or shall cause its transfer agent to,
`furnish Parent and Acquisition Sub with such assistance and such information as Parent or its agents may reasonably
`request in order to disseminate and otherwise communicate the Offer to the record and beneficial holders of Company
`Shares, including a list, as of the most recent practicable date, of the stockholders of the Company, mailing labels and any
`available listing or computer files containing the names and addresses of all record and beneficial holders of Company
`Shares, and lists of security positions of Company Shares held in stock depositories (including updated lists of
`stockholders, mailing labels, listings or files of securities positions). Subject to applicable Law (including applicable stock
`exchange requirements), and except for such steps as are necessary to disseminate the Offer Documents and any other
`documents necessary to consummate the Offer or the Merger, Parent and Acquisition Sub (and their respective agents)
`shall:
`
`(i) hold in confidence the information contained in any such lists of stockholders, mailing labels and
`listings or files of securities positions;
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`(ii) use such information only in connection with the Offer and the Merger; and
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`(iii) if (A) this Agreement is validly terminated pursuant to Article IX, and (B) Parent and Acquisition Sub
`withdraw the Offer, promptly return (and use their respective reasonable efforts to cause their agents to deliver) to the
`Company any and all copies and any extracts or summaries from such information then in their possession or control.
`
`Section 1.3. Transfer Registration. The Company shall register (and shall instruct its transfer