Common use of Amendments to Merger Agreement Clause in Contracts

Amendments to Merger Agreement. The Merger Agreement is hereby amended as follows: 2.1 Exhibit A-1 to the Merger Agreement is hereby amended and restated in its entirety to read as provided in Exhibit A-1 hereof. 2.2 Exhibit A-2 to the Merger Agreement is hereby amended and restated in its entirety to read as provided in Exhibit A-2 hereof. 2.3 Section 1.6(d) of the DIRECTV Disclosure Schedule is hereby amended and restated in its entirety to read as provided in Schedule 2.3 hereof. 2.4 Section 2.4 of the Liberty Disclosure Schedule is hereby amended and restated in its entirety to read as provided in Schedule 2.4 hereof. 2.5 Section 6.11(c) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "Liberty and Splitco agree not to consummate the Split-Off until the first to occur of (i) all of the conditions precedent set forth in Article VII of this Agreement, other than those conditions precedent set forth in Sections 7.1(b) and 7.2(j) and those conditions precedent that by their nature are to be satisfied at Closing, shall have been satisfied or, to the extent permitted under the terms hereof, waived and the parties hereto shall have confirmed that the Closing will occur subject only to the satisfaction of those conditions precedent set forth in Sections 7.1(b) and 7.2(j) and those conditions precedent that by their nature are to be satisfied at Closing and (ii) the termination of this Agreement." 2.6 Section 7.1(c) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "The DIRECTV Stockholder Approval shall have been obtained in accordance with applicable Law and the DIRECTV Charter Documents; provided, that this condition precedent may not be waived by DIRECTV;" 2.7 Section 9.1(b)(i) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "if the Transactions shall not have been consummated on or before the Walk-Away Date; provided, however, that the right to terminate this Agreement under this Section 9.1(b)(i) shall not be available to any party whose action or failure to act has been the cause of or resulted in the failure of either of the Mergers to occur on or before the Walk-Away Date and such action or failure to act constitutes a breach of this Agreement or any of the other Transaction Agreements;" 2.8 The defined term "Walk-Away Date" in Section 10.10 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

Amendments to Merger Agreement. The (a) Section 5.05(a)(ii)(B) of the Merger Agreement is hereby amended as follows:deleted in its entirety and replaced with the language set forth below: “a registration statement on Form S-1 (together with any amendments, supplements, prospectus or information statements thereto, the “Form S-1”) to register the Fountain Common Stock to be distributed in the Distribution,” 2.1 Exhibit A-1 (b) Throughout the Merger Agreement, the defined term “Form 10” shall be deleted in its entirety and replaced with the defined term “Form S-1”; provided, that the words “Form 10” shall not be deleted in the first sentence of Section 2.05(b) of the Merger Agreement or with respect to any use of the term “Draft Form 10”. (c) Section 1.06(b)(A) of the Merger Agreement is hereby deleted in its entirety and replaced with the language set forth below: “up to two persons to be selected by Trident prior to the mailing of the Trident Proxy and reasonably acceptable to Patriot and” (d) The definition of “Proxy Statement/Prospectus” under Section 9.01 of the Merger Agreement is hereby amended and restated in its entirety to read as provided in Exhibit A-1 hereofby replacing “Section 5.05(b)” therein with “Section 5.05(a)”. 2.2 Exhibit A-2 to the Merger Agreement is hereby amended and restated in its entirety to read as provided in Exhibit A-2 hereof. 2.3 (e) Section 1.6(d) of the DIRECTV Disclosure Schedule is hereby amended and restated in its entirety to read as provided in Schedule 2.3 hereof. 2.4 Section 2.4 of the Liberty Disclosure Schedule is hereby amended and restated in its entirety to read as provided in Schedule 2.4 hereof. 2.5 Section 6.11(c5.03(c) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "Liberty “Each of Patriot, Trident and Splitco agree not Fountain agrees to consummate cooperate in good faith in order for (x) Tyco Flow Control International Finance S.A. (“FIFSA”) to issue prior to the Split-Off until Distribution in an unregistered offering up to $900 million of unsecured senior notes (the first “Senior Notes”) that will be guaranteed as to occur payment by Fountain no later than the Closing (the “Senior Notes Issuance”) and (y) Patriot to execute a credit agreement prior to the Distribution with a syndicate of banks providing for an unsecured, committed senior credit facility of up to $1.2 billion (with an option to increase by $500 million) pursuant to which (i) all FIFSA will become a borrower, (ii) Fountain will become a guarantor as to payment and (iii) borrowings under such credit facility will become effective concurrently with the Closing (the “Senior Credit Facility”), in each of clauses (x) and (y) subject to the following terms and conditions: (i) The commencement of an offering with respect to the Senior Notes Issuance shall be subject to the following: (A) at Trident’s option either (1) Trident receiving the required consent of lenders under each of the conditions precedent set forth in Article VII $1,000,000,000 five-year senior unsecured revolving credit agreement dated June 22, 2012 among Tyco International Finance S.A. (“TIFSA”), as borrower, Trident, as guarantor, each of this Agreementthe initial lenders named therein, other than those conditions precedent set forth in Sections 7.1(b) and 7.2(j) Citibank, N.A. as administrative agent, the $750,000,000 five-year senior unsecured revolving credit agreement dated June 22, 2012 among The ADT Corporation, as borrower, Trident, as guarantor, each of the initial lenders named therein, and those conditions precedent that by their nature are to be satisfied at ClosingCitibank, shall have been satisfied orN.A., as administrative agent, and the $500,000,000 five-year senior unsecured credit agreement, dated April 25, 2007, among TIFSA, as borrower, Trident, as guarantor, each of the initial lenders named therein, and Citibank, N.A. as administrative agent with respect to the extent permitted Senior Notes Issuance or (2) Trident causing FIFSA to become a “Subsidiary Guarantor” under each of the terms hereofcredit agreements described above (as such term is defined in each such agreement), waived and which designation shall be removed upon the parties hereto shall have confirmed occurrence of the Closing; (B) Trident obtaining approval of the Trident board of directors for the Senior Notes Issuance; (C) Trident not determining in its sole discretion that the Senior Notes Issuance shall not occur; and (D) Patriot not determining in its sole discretion that the Senior Notes Issuance shall not occur. (ii) At the settlement of any Senior Notes Issuance, (A) Trident shall cause FIFSA to deposit the proceeds of the Senior Notes Issuance (net of initial purchaser fees) into an escrow account (the “Escrow Account”) with an escrow agent selected by Patriot and reasonably acceptable to Trident and (B) Patriot shall deposit into the Escrow Account an amount of cash (the “Patriot Escrow Amount”) that results in the total funds deposited into the Escrow Account being equal to 101% of the aggregate principal amount of the Senior Notes, together with an amount equal to the interest payable on such senior notes from the issue date to the Outside Date. The escrow agreement for the Escrow Account shall provide that, upon the Closing will occur subject only to and the satisfaction of those other conditions precedent set forth mutually agreed to by Patriot, Trident and the initial purchasers for the Senior Notes Issuance, the proceeds of the Senior Notes Issuance (net of initial purchaser fees) shall be released and distributed to FIFSA and the Patriot Escrow Amount shall be released and distributed to Patriot. If by the Outside Date, the conditions to the release of the funds in Sections 7.1(bthe Escrow Account have not been satisfied or such other conditions mutually agreed to by Patriot, Trident and the initial purchasers for the Senior Notes have not been satisfied, then Trident shall cause FIFSA to redeem, and the indenture for the Notes shall provide for FIFSA to redeem, the Senior Notes at a redemption price equal to 101% of the principal amount of the Senior Notes, together with accrued but unpaid interest on the Senior Notes, and otherwise on terms mutually agreed to by Patriot, Trident and the initial purchasers for the Senior Notes Issuance in the indenture for the Senior Notes. The escrow agreement for the Escrow Account shall provide that the funds in the Escrow Account shall be released and distributed to pay for any such redemption in accordance with the indenture for the Senior Notes with any remaining funds after such redemption released and distributed to Pentair. (iii) None of Fountain, the Fountain Subs or Trident shall be required to incur any indebtedness pursuant to the Senior Notes unless the incurrence thereof is consistent with the foregoing or the Senior Credit Facility unless the incurrence thereof is concurrent with and subject to the Closing. (iv) The Parties agree that, subject to paragraph (v) below, Xxxxxx, Xxxx & Xxxxxxxx LLP will serve as issuer’s counsel (“Issuer’s Counsel”) and 7.2(jXxxxxxxx & Xxxxxxxx LLP will serve as counsel to the initial purchasers for the Senior Notes Issuance, provided that counsel to Patriot shall have a reasonable opportunity to review and comment on all documentation relating to the Senior Notes Issuance. The parties agree that Xxxxx & Lardner LLP will serve as borrower’s counsel and Xxxxx Xxxxx LLP will serve as counsel to the lenders for the Senior Credit Facility. (v) Patriot shall be entitled to negotiate and, subject to the foregoing, determine the terms of the Senior Notes and the Senior Credit Facility in its sole discretion, including any related indentures, credit agreements and similar documents related thereto, and in connection therewith, each of Patriot, Trident and Fountain shall, and Trident shall cause FIFSA to, subject to Section 5.03(d) and those conditions precedent that by the foregoing, enter into all necessary or appropriate arrangements and use their nature are respective commercially reasonable efforts to take, or cause to be satisfied at Closing taken, all actions and to do, or cause to be done, all other things necessary, proper or advisable with respect thereto, in each case as may be reasonably requested by Patriot or Trident. Without limiting the foregoing, the Parties shall provide to each other copies of all agreements relating to the Senior Notes Issuance and the Senior Credit Facility and keep the other Parties reasonably informed of all material developments in respect thereof. Each of Trident, Fountain and Patriot agree to allow the other’s accounting representatives a reasonable opportunity to review any financial statements required in connection therewith and to allow such representatives reasonable access to the records of Fountain, the Fountain Subs and each other Subsidiary of Trident, as appropriate, and of Patriot and each of its Subsidiaries, as appropriate, in connection therewith. Each Party shall use its commercially reasonable efforts to cause its outside auditors to participate in the preparation of any pro forma financial statements related to the combination of Fountain and Patriot necessary or desirable for use in connection with obtaining any such indebtedness. Notwithstanding anything to the contrary in this Section 5.03(c), Trident’s cooperation shall not include any requirement or obligation of Trident or any of its Subsidiaries (other than Fountain and the Fountain Subs), and Patriot’s cooperation shall not include any requirement or obligation of Patriot or any of its Subsidiaries, in each case, to pay any consideration, extend any credit, guaranty any performance, payment or other obligation, incur any financial obligation, offer or grant any financial accommodation or other benefit, release any claim or incur any other liability whatsoever (in each case other than fees and disbursements of outside counsel and any other advisors), except, in the case of Patriot, for (1) any such action the effectiveness of which is expressly conditioned upon the occurrence of the Closing, (2) Patriot’s obligations pursuant to paragraph (ii) above with respect to the termination of this AgreementEscrow Account and (3) Patriot’s obligations to Trident pursuant to Section 5.03(f)."” 2.6 (f) Section 7.1(c5.03(d) of the Merger Agreement is hereby amended and restated in its entirety to read as follows: "The DIRECTV Stockholder Approval “If, following the Parties’ compliance with the provisions of Section 5.03(c), the Senior Notes Issuance is consummated or Patriot is able to execute a credit agreement providing for the Senior Credit Facility on Acceptable Terms, then, immediately prior to the Distribution, Fountain or a Fountain Sub shall issue to Trident or a Subsidiary of Trident, as directed by Trident, an intercompany note (the “Trident Note”) to provide that (x) such intercompany indebtedness shall be in a principal amount up to $500 million and shall otherwise be on terms mutually agreed to by the Parties and (y) notwithstanding any provisions of the Separation Agreement to the contrary, concurrently with the Closing, Fountain shall repay or cause the Fountain Sub that issued the Trident Note to repay in full all outstanding amounts with respect to the Trident Note such that upon repayment, from and after the Closing Date, no Parties or their Affiliates shall have been obtained any further obligations with respect thereto. If, following the Parties’ compliance with the provisions of Section 5.03(c), the Senior Notes Issuance is not consummated and Patriot is unable to execute a credit agreement providing for the Senior Credit Facility on Acceptable Terms, then, immediately prior to the Distribution, at Trident’s discretion, either (i) Fountain or a Fountain Sub shall issue to Trident or a Subsidiary of Trident, as directed by Trident, the Bridge Note or (ii) Trident and Fountain shall modify existing intercompany indebtedness of members of the Fountain Group owed to members of the Trident Group, as selected by Trident and approved by Patriot (such approval not to be unreasonably withheld, delayed or conditioned) to provide that (x) such intercompany indebtedness shall be in accordance a principal amount up to $500 million and shall otherwise be on terms consistent with applicable Law the terms of the Bridge Note and (y) notwithstanding any provisions of the DIRECTV Charter Documents; providedSeparation Agreement to the contrary, that this condition precedent may not be waived by DIRECTV;"such indebtedness shall survive the Closing.” 2.7 Section 9.1(b)(i(g) Article V of the Merger Agreement is hereby amended by adding the following Section 5.03(f): “Patriot shall (i) indemnify, defend and restated hold harmless the Trident Indemnitees (as such term is defined in its entirety to read the Separation Agreement) from and against any and all damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses (including the costs and expenses of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the reasonable costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder) arising out of, by reason of or otherwise in connection with the Senior Notes Issuance or the Senior Credit Facility, and (ii) promptly, as follows: "if and when incurred and upon request by Trident, reimburse each member of the Transactions shall not have been consummated on Trident Group for all reasonable third party costs and expenses incurred in connection with the Senior Notes Issuance and the Senior Credit Facility, including the costs and expenses of attorneys’, accountants’, financial advisors’, consultants’ and other professionals’ fees and expenses incurred in connection with the preparation of confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials, engaging in due diligence in connection with any legal opinions, authorization letters or before the Walk-Away Date; certificates, delivering comfort letters and obtaining any consents from any third party required in connection therewith (provided, however, that a member of the right to terminate this Agreement under this Section 9.1(b)(i) Trident Group shall not make any payment to a third party for any such consent without the approval of Patriot), which costs and expenses shall be available to any party whose action reimbursed by Patriot regardless of whether the Senior Notes Issuance or failure to act has been the cause Senior Credit Facility is consummated; provided that Trident shall provide Patriot reasonable documentation of or resulted in the failure of either of the Mergers to occur on or before the Walk-Away Date all such costs and such action or failure to act constitutes a breach of this Agreement or any of the other Transaction Agreements;"expenses.” 2.8 The defined term "Walk-Away Date" in (h) Section 10.10 9.01 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:delete the definition of “Trident Financing.”