Common use of The Merger Agreement Clause in Contracts

The Merger Agreement. The following is a summary of the Merger Agreement. The following summary does not purport to be a complete description of the terms and conditions of the Merger Agreement and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as an exhibit to the Tender Offer Statement on Schedule TO that has been filed with the Securities and Exchange Commission by the Purchaser and Borland in connection with the Offer, and is incorporated in this Offer to Purchase by reference. The Merger Agreement may be examined, and copies obtained, by following the procedures described in Section 8 (Certain Information Concerning Starbase) of this Offer to Purchase. The Offer The Merger Agreement provides for the commencement of the Offer. The Purchaser’s obligation to accept for payment shares of Starbase common stock that are tendered in the Offer is subject to the satisfaction or waiver, if permitted under the Merger Agreement, of each of the conditions to the Offer that are described in Section 13 (Certain Conditions to the Offer) of this Offer to Purchase. The Purchaser may not, without Starbase’s prior written consent, make any change to the terms and conditions of the Offer that (i) decreases the Offer Price, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the number of shares of Starbase common stock sought in the Offer, (iv) imposes new conditions to the Offer in addition to those described in Section 13 of this Offer to Purchase, (v) extends the Offer except as provided for in the Merger Agreement and described below, (vi) amends or waives the Minimum Condition or (vii) is adverse to the holders of shares of Starbase common stock. The Purchaser is obligated to extend the Offer for 15 business days if all of the conditions to the Offer, other than the Minimum Condition and conditions relating to any foreign antitrust approvals and required consents, have been satisfied by 12:00 midnight, New York City time, on Friday, November 8, 2002, the initial expiration date of the Offer, provided that such 15-business day extension may be for a single 15-business day period or for two or more shorter periods as the Purchaser shall determine, and, if the Minimum Condition is satisfied at the end of any such period, the Purchaser will not be required to further extend the Offer. The Purchaser also may (but is not required to) provide for a subsequent offering period (within the meaning of Rule 14d-11 under the Exchange Act) of at least three but not more than twenty business days immediately following the expiration of the Offer. The Merger Agreement further provides that the Purchaser will, on the terms and subject to the conditions to the Offer, accept for payment, and pay for, all the shares of Starbase common stock that are validly tendered and not properly withdrawn in the Offer as promptly as practicable after the Expiration Date. If the Purchaser provides for a subsequent offering period, subject to the terms and conditions of the Merger Agreement, the Purchaser will accept for payment, and pay for, all shares of Starbase common stock that are validly tendered during the subsequent offering period as promptly as practicable after such shares are tendered.

The Merger Agreement. The following is a summary of certain provisions of the Merger Agreement. The following This summary does not purport to be a complete description of the terms and conditions of the Merger Agreement and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as an exhibit Exhibit (d)(1) to the Tender Offer Statement on Schedule TO that has been we have filed with the Securities SEC on December 7, 2015 (the “Schedule TO”) and Exchange Commission by the Purchaser and Borland in connection with the Offer, and which is incorporated in this Offer to Purchase herein by reference. The Merger Agreement may be examined, examined and copies obtained, by following may be obtained in the procedures described manner set forth in Section 8 (— “Certain Information Concerning Starbase) of this Offer to PurchaseTCS.” The Offer. The Offer The Merger Agreement provides for that Purchaser will commence the commencement Offer and that, upon the terms and subject to prior satisfaction or waiver of the Offer Conditions described in Section 13 — “Conditions of the Offer. The Purchaser’s obligation to accept for payment shares of Starbase common stock that are tendered in ” (including, if the Offer is subject to extended or amended in accordance with the satisfaction or waiver, if permitted under terms of the Merger Agreement, of each of the conditions to the Offer that are described in Section 13 (Certain Conditions to the Offer) of this Offer to Purchase. The Purchaser may not, without Starbase’s prior written consent, make any change to the terms and conditions of any extension or amendment), Purchaser will accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that promptly after the Expiration Date (the “Acceptance Time”). The Merger Agreement requires us to: (i) decreases the Offer Price, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the number of shares of Starbase common stock sought in the Offer, (iv) imposes new conditions to the Offer in addition to those described in Section 13 of this Offer to Purchase, (v) extends the Offer except as provided for in the Merger Agreement and described below, (vi) amends or waives the Minimum Condition or (vii) is adverse to the holders of shares of Starbase common stock. The Purchaser is obligated to extend the Offer for 15 successive periods of up to 10 business days each (or such longer period of up to 20 business days per extension if all of the conditions Comtech desires and TCS consents in writing prior to the Offer, such extension) if any Offer Conditions (other than the Minimum Condition Condition) have not been satisfied or have not been waived (provided that the Offer does not expire more than three business days following the end of the Marketing Period and such condition or conditions relating are capable of being satisfied on or before the End Date); (ii) extend the Offer for successive periods of 10 business days each (or such longer period of up to any foreign antitrust approvals 20 business days per extension if Comtech desires and required consents, TCS consents in writing prior to such extension) if all the Offer Conditions (other than the Minimum Condition) have been satisfied by 12:00 midnight, New York City time, on Friday, November 8, 2002, the initial expiration date of the Offer, or have been waived (provided that such 15-the Offer does not expire more than three business day extension may be for a single 15-business day period or for two or more shorter periods as the Purchaser shall determine, and, if the Minimum Condition is satisfied at days following the end of any such period, the Marketing Period and Purchaser will not be required to further extend the Offer pursuant to this clause on more than two occasions but may do so in its sole and absolute discretion); and (iii) extend the Offer for the minimum period or periods required by applicable law or rules, regulations, interpretations or positions of the SEC or its staff or the NASDAQ. We expressly reserve the right to make any changes in the terms or conditions to the Offer. The ; provided, however, unless previously approved by TCS in writing, Comtech and Purchaser also may (but is not required to) provide for a “subsequent offering period period” (within the meaning of Rule 14d-11 under the Exchange Act) of at least three but not more than twenty business days immediately following the expiration of the Offer. The Merger Agreement further provides that the Purchaser will, on the terms and subject to the conditions to the Offer, accept for payment, and pay for, all the shares of Starbase common stock that are validly tendered and not properly withdrawn in the Offer as promptly as practicable after the Expiration Date. If the Purchaser provides for a subsequent offering period, subject to the terms and conditions of the Merger Agreement, the Purchaser will accept for payment, and pay for, all shares of Starbase common stock that are validly tendered during the subsequent offering period as promptly as practicable after such shares are tendered).

The Merger Agreement. The following is a summary of certain provisions of the Merger Agreement. The following This summary does not purport to be a complete description of the terms and conditions of the Merger Agreement and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as an exhibit Exhibit (d)(1) to the Tender Offer Statement on Schedule TO that has been we have filed with the Securities SEC on September 22, 2014 (the “Schedule TO”) and Exchange Commission by the Purchaser and Borland in connection with the Offer, and which is incorporated in this Offer to Purchase herein by reference. The Merger Agreement may be examined, examined and copies obtained, by following may be obtained in the procedures described manner set forth in Section 8 (Certain 8—“Certain Information Concerning Starbase) of this Offer to PurchaseXxxxx’s.” The Offer. The Offer The Merger Agreement provides for that Purchaser will commence the commencement Offer and that, upon the terms and subject to prior satisfaction or waiver of the Offer Conditions described in Section 13—“Conditions of the Offer. The Purchaser’s obligation to accept for payment shares of Starbase common stock that are tendered in ” (including, if the Offer is subject to the satisfaction extended or waiveramended, if permitted under the Merger Agreement, of each of the conditions to the Offer that are described in Section 13 (Certain Conditions to the Offer) of this Offer to Purchase. The Purchaser may not, without Starbase’s prior written consent, make any change to the terms and conditions of the Offer that (i) decreases the Offer Priceany extension or amendment), (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the number of shares of Starbase common stock sought in the Offer, (iv) imposes new conditions to the Offer in addition to those described in Section 13 of this Offer to Purchase, (v) extends the Offer except as provided for in the Merger Agreement and described below, (vi) amends or waives the Minimum Condition or (vii) is adverse to the holders of shares of Starbase common stock. The Purchaser is obligated to extend the Offer for 15 business days if all of the conditions to the Offer, other than the Minimum Condition and conditions relating to any foreign antitrust approvals and required consents, have been satisfied by 12:00 midnight, New York City time, on Friday, November 8, 2002, the initial expiration date of the Offer, provided that such 15-business day extension may be for a single 15-business day period or for two or more shorter periods as the Purchaser shall determine, and, if the Minimum Condition is satisfied at the end of any such period, the Purchaser will not be required to further extend the Offer. The Purchaser also may (but is not required to) provide for a subsequent offering period (within the meaning of Rule 14d-11 under the Exchange Act) of at least three but not more than twenty business days immediately following the expiration of the Offer. The Merger Agreement further provides that the Purchaser will, on the terms and subject to the conditions to the Offer, accept for payment, and pay for, all the shares of Starbase common stock that are validly tendered and not properly withdrawn in the Offer as promptly as practicable after the Expiration Date. If the Purchaser provides for a subsequent offering period, subject to the terms and conditions of the Merger Agreement, the Purchaser will accept for payment, and pay for, all shares of Starbase common stock that are Shares validly tendered during pursuant to the subsequent offering Offer and not properly withdrawn prior to the Expiration Date. The Merger Agreement requires us to (a) extend the Offer for one or more periods of time in consecutive increments of up to ten business days per extension (or such longer periods as may be agreed to by Purchaser, Xxxxx’s and General Xxxxx) if, at the time the Offer is scheduled to expire, any of the Offer Conditions are not satisfied or have not been waived, until such time as such Offer Conditions are satisfied or waived, and (b) extend the Offer for the minimum period as promptly as practicable after required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer; provided, that (1) we are not required to extend the Offer beyond the date of a Conversion Event, (2) if at any such shares scheduled expiration of the Offer, the Minimum Tender Condition is not satisfied but all other Offer Conditions are tenderedsatisfied or waived, then we shall not be required to extend the Offer for more than twenty-five business days in the aggregate and (3) we shall not be required to extend the Offer beyond June 8, 2015 or the termination of the Merger Agreement.

The Merger Agreement. The following is a summary of certain provisions of the Merger Agreement. The following This summary does not purport to be a complete description of the terms and conditions of the Merger Agreement and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as an exhibit to the Tender Offer Statement on Schedule TO that has been we have filed with the Securities SEC on May 21, 2012 (the "Schedule TO") and Exchange Commission by the Purchaser and Borland in connection with the Offer, and which is incorporated in this Offer to Purchase herein by reference. The Merger Agreement may be examined, examined and copies obtained, by following may be obtained in the procedures described manner set forth in Section 8 (Certain 8—"Certain Information Concerning Starbase) Xxxxxx Xxxx." You are encouraged to read the full text of this Offer to Purchase. The Offer The the Merger Agreement provides for because it is the commencement legal document that governs the Merger and certain aspects of the Offer. The Purchaser’s obligation summary description has been included in this Offer to accept for payment shares Purchase to provide you with information regarding the terms of Starbase common stock that are tendered in the Offer Merger Agreement and is subject not intended to modify or supplement any rights or obligations of the satisfaction or waiver, if permitted parties under the Merger AgreementAgreement or any factual disclosures about Xxxxxx Xxxx or the transactions contemplated in the Merger Agreement contained in public reports filed by Xxxxxx Xxxx or DSM with the SEC. The Offer. The Merger Agreement provides that Purchaser will commence the Offer and that, of each upon the terms and subject to prior satisfaction or waiver of the conditions to the Offer that are described in Section 13 (Certain Conditions to 13—"Conditions of the Offer) of this " (including, if the Offer to Purchase. The Purchaser may notis extended or amended, without Starbase’s prior written consent, make any change to the terms and conditions of the Offer that (i) decreases the Offer Priceany extension or amendment), (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the number of shares of Starbase common stock sought in the Offer, (iv) imposes new conditions to the Offer in addition to those described in Section 13 of this Offer to Purchase, (v) extends the Offer except as provided for in the Merger Agreement and described below, (vi) amends or waives the Minimum Condition or (vii) is adverse to the holders of shares of Starbase common stock. The Purchaser is obligated to extend the Offer for 15 business days if all of the conditions to the Offer, other than the Minimum Condition and conditions relating to any foreign antitrust approvals and required consents, have been satisfied by 12:00 midnight, New York City time, on Friday, November 8, 2002, the initial expiration date of the Offer, provided that such 15-business day extension may be for a single 15-business day period or for two or more shorter periods as the Purchaser shall determine, and, if the Minimum Condition is satisfied at the end of any such period, the Purchaser will not be required to further extend the Offer. The Purchaser also may (but is not required to) provide for a subsequent offering period (within the meaning of Rule 14d-11 under the Exchange Act) of at least three but not more than twenty business days immediately following the expiration of the Offer. The Merger Agreement further provides that the Purchaser will, on the terms and subject to the conditions to the Offer, accept for payment, and pay for, all the shares of Starbase common stock that are validly tendered and not properly withdrawn in the Offer as promptly as practicable after the Expiration Date. If the Purchaser provides for a subsequent offering period, subject to the terms and conditions of the Merger Agreement, the Purchaser will accept for payment, and pay for, all shares of Starbase common stock that are Shares validly tendered during pursuant to the Offer and not withdrawn prior to the Expiration Date. We are permitted to (without Xxxxxx Xxxx'x consent), and shall (a) extend the Offer for one or more periods of time in consecutive increments of up to ten (10) business days per extension if, at the time the Offer is scheduled to expire, any of the Offer Conditions is not satisfied and has not been waived, until such time as all such Offer Conditions are satisfied or waived or (b) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable Table of Contents to the Offer; provided, that if at any such scheduled expiration of the Offer, the Minimum Tender Condition is not satisfied but all other offer conditions are satisfied or waived, then we shall not be required to extend the Offer for more than ten (10) business days in the aggregate. If fewer than 90% of the Shares are tendered, we may elect to, or at the request of Xxxxxx Xxxx be required to, provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the Exchange Act of at least ten (10) business days (or such shorter period as promptly as practicable after shall be requested by the Company); provided, however, that if the number of Shares validly tendered and accepted for payment pursuant to the Offer would, assuming the exercise of the top-up option and the issuance of Shares pursuant to the top-up option, constitute at least one share more than 90% of the number of Shares then outstanding, any such shares request by Xxxxxx Xxxx will not obligate DSM or Purchaser to make available such subsequent offering period. In any event, we are tenderednot required to extend the Offer beyond October 31, 2012 or any termination of the Merger Agreement. See Sections 1 and 13—"Terms of the Offer" and "Conditions of the Offer."