Common use of The Merger Agreement Clause in Contracts

The Merger Agreement. This section of the Offer to Purchase describes certain provisions of the Merger Agreement but does not purport to describe all of the terms of the Merger Agreement. The following summary is qualified in its entirety by reference to the complete text of the Merger Agreement, which is filed as an exhibit to the Schedule TO and is incorporated herein by reference. You are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Merger. The Merger Agreement may be examined and copies may be obtained in the manner set forth in Section 8—"Certain Information Concerning ArcSight—Available Information." The Merger Agreement is not intended to provide you with any other factual information about HP, Purchaser or ArcSight. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement provides that following the satisfaction or waiver of the conditions described in this Section 12 under "—Conditions to the Merger," Purchaser will be merged with and into ArcSight and each then outstanding Share (other than Shares owned directly by HP, Purchaser or ArcSight, or Shares that are held by stockholders, in each case, if any, who are entitled to and who properly exercise appraisal rights under the DGCL) will be converted into the right to receive cash in an amount equal to the Offer Price, without interest thereon and less any applicable withholding taxes. The Merger Agreement provides that, notwithstanding anything to the contrary set forth in the Merger Agreement, (i) we will extend the Offer for any period required by any rule or regulation of the SEC or the NASDAQ, in any such case which is applicable to the Offer; and (ii) in the event that all of the conditions to the Offer, including the Minimum Condition or any of the other conditions set forth in Section 14—"Conditions of the Offer," are not satisfied or waived (if permitted under the Merger Agreement) as of any then scheduled expiration of the Offer, we will extend the Offer for successive extension periods of up to 10 business days each in order to permit the satisfaction of all of the conditions to the Offer. However, we are not obligated under the Merger Agreement to extend the Offer beyond the Initial Termination Date (as defined below) or the Extended Termination Date (as defined below), as applicable, or if the Merger Agreement is terminated pursuant to its terms. In addition, the Merger Agreement provides that, following our acquisition of Shares in the Offer, we may provide a subsequent offering period (in accordance with Rule 14d-11 of the Exchange Act. A subsequent offering period would be an additional period of time of at least 3 business days and not more than 20 business days following the expiration of the Offer during which stockholders may tender Shares not tendered in the Offer and receive the same Offer Price paid in the Offer, without interest thereon and less any applicable withholding taxes. During a subsequent offering period, we will promptly pay for Shares that are validly tendered during such subsequent offering period, and tendering stockholders will not have withdrawal rights. Top-Up Option. Pursuant to the terms of the Merger Agreement following the Appointment Time, if we acquire more than a majority but less than 90% of the Shares outstanding, we have the option (the "Top-Up Option") to purchase from ArcSight, subject to certain limitations, up to a number of additional Shares (the "Top-Up Option Shares") sufficient to cause HP and Purchaser to own one (1) Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the option, calculated on a fully-diluted basis (assuming the issuance of all Shares issuable upon the conversion or exercise of options, rights and securities that are then convertible into or exercisable for Shares). The exercise price per Share for the Top-Up Option would equal the Offer Price and would be paid (x) entirely in cash or (y) in cash equal to the aggregate par value of the Top-Up Option Shares and by issuance by us to ArcSight of a full recourse unsecured promissory note. Pursuant to the terms of the Merger Agreement, the Top-Up Option is exercisable at any one time on or prior to the fifth business day after the later of (x) the acceptance for payment of Shares pursuant to the Offer and (y) the expiration of any subsequent offering period. The Top-Up Option will terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms. The Merger Agreement provides that the Top-Up Option is not exercisable to the extent that the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued Shares. We could also acquire additional Shares after completion of the Offer through other means, such as open market purchases. In any event, if we acquire at least 90% of the issued and outstanding Shares entitled to vote on the adoption of the Merger Agreement, we would effect the Merger under the "short-form" merger provisions of the DGCL. Stockholders who have not sold their Shares in the Offer would have certain appraisal rights with respect to the Merger under the applicable provisions of the DGCL, if those rights are perfected. The Merger. The Merger Agreement provides that, at the Effective Time, Purchaser will be merged with and into ArcSight with ArcSight being the surviving corporation (the "Surviving Corporation"). Following the Merger, the separate existence of Purchaser will cease, and ArcSight will continue as the Surviving Corporation and a wholly-owned, direct or indirect, subsidiary of HP. Pursuant to the Merger Agreement, each Share outstanding owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, will be cancelled and extinguished without any conversion thereof or consideration paid therefor. Pursuant to the Merger Agreement, each Share that is outstanding immediately prior to the Effective Time (other than (A) Shares owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, and (B) any Dissenting Shares (as defined below)) will be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to the Offer Price (the "Merger Consideration"), without interest thereon and less any applicable withholding taxes, upon the surrender of the certificate representing such Share in the manner provided in the Merger Agreement. Shares that are issued and outstanding immediately prior to the Effective Time and held by a stockholder (if any) who is entitled to demand, and who properly demands, appraisal for such Shares in accordance with Section 262 of the DGCL ("Dissenting Shares") will not be converted into, or represent the right to receive, the Merger Consideration but rather such stockholder will be entitled to receive payment of the appraised value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL. However, all Dissenting Shares held by stockholders who have failed to perfect or who have otherwise waived, withdrawn or lost their rights to appraisal of such Dissenting Shares under such Section 262 of the DGCL will no longer be considered to be Dissenting Shares and will thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without interest thereon and less any applicable withholding taxes, upon surrender of the certificate or certificates that formerly evidenced such Shares in the manner provided in the Merger Agreement. Stockholders who tender their Shares in the Offer will not be entitled to exercise appraisal rights with respect to such Shares, but rather, subject to the conditions of the Offer, will receive the Offer Price.

The Merger Agreement. This section The following is a summary of the Offer to Purchase describes certain material provisions of the Merger Agreement but does not purport Agreement, a copy of which has been filed as an exhibit to describe all of the terms of Tender Offer Statement on Schedule TO that Alcatel Lucent, Parent and Purchaser have filed with the Merger AgreementSEC. The following This summary is qualified in its entirety by reference to the complete text of the Merger Agreement, which is filed as an exhibit to the Schedule TO and is incorporated herein by reference. You are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Mergerreference herein. The Merger Agreement may be examined and copies may be obtained in the manner set forth in Section 8—"Certain 9 — “Certain Information Concerning ArcSight—Available InformationPurchaser, Parent and Alcatel Lucent." ” The Merger Agreement is not intended to provide you with any other factual information about HP, Purchaser or ArcSight. Such information can be found elsewhere in this Offer to PurchaseOffer. The Merger Agreement provides that following Purchaser will commence the Offer and that, upon the terms and subject to prior satisfaction or waiver of the conditions described in this Section 12 under "—Conditions to the Merger," Purchaser will be merged with and into ArcSight and each then outstanding Share (other than Shares owned directly by HP, Purchaser or ArcSight, or Shares that are held by stockholders, in each case, if any, who are entitled to and who properly exercise appraisal rights under the DGCL) will be converted into the right to receive cash in an amount equal to the Offer Pricedescribed in Section 15 — “Conditions to Purchaser’s Obligations” (including, without interest thereon if the Offer is extended or amended, the terms and less conditions of any applicable withholding taxesextension or amendment), Purchaser will accept for payment, and pay for, all Shares validly tendered pursuant to the Offer and not withdrawn by the Expiration Date. The Merger Agreement provides Purchaser expressly reserves the right from time to time, to waive any condition to the Offer; provided that, notwithstanding anything pursuant to the contrary set forth in the Merger Agreement, Purchaser has agreed that it will not, without the prior written consent of the Company, (ia) we will extend decrease the Offer for any period required by any rule Price or regulation change the form of the SEC or the NASDAQ, in any such case which is applicable consideration to the Offer; and (ii) in the event that all of the conditions to the Offer, including the Minimum Condition or any of the other conditions set forth in Section 14—"Conditions of the Offer," are not satisfied or waived (if permitted under the Merger Agreement) as of any then scheduled expiration of the Offer, we will extend the Offer for successive extension periods of up to 10 business days each in order to permit the satisfaction of all of the conditions to the Offer. However, we are not obligated under the Merger Agreement to extend the Offer beyond the Initial Termination Date (as defined below) or the Extended Termination Date (as defined below), as applicable, or if the Merger Agreement is terminated pursuant to its terms. In addition, the Merger Agreement provides that, following our acquisition of Shares in the Offer, we may provide a subsequent offering period (in accordance with Rule 14d-11 of the Exchange Act. A subsequent offering period would be an additional period of time of at least 3 business days and not more than 20 business days following the expiration of the Offer during which stockholders may tender Shares not tendered in the Offer and receive the same Offer Price paid in the Offer, without interest thereon and less any applicable withholding taxes. During (b) decrease the number of Shares sought to be purchased in the Offer, (c) amend or waive satisfaction of the Minimum Condition, except that Purchaser may on a subsequent offering period, we will promptly pay for Shares that are validly tendered during such subsequent offering period, and tendering stockholders will not have withdrawal rights. Top-Up Option. Pursuant single occasion irrevocably decrease the Minimum Condition to the terms of the Merger Agreement following the Appointment TimeLowered Minimum Condition, if we acquire more than a majority but less than 90% of the Shares outstanding, we have the option (the "Top-Up Option"d) impose conditions to purchase from ArcSight, subject to certain limitations, up to a number of additional Shares (the "Top-Up Option Shares") sufficient to cause HP and Purchaser to own one (1) Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the option, calculated on a fully-diluted basis (assuming the issuance of all Shares issuable upon the conversion or exercise of options, rights and securities that are then convertible into or exercisable for Shares). The exercise price per Share for the Top-Up Option would equal the Offer Price and would be paid (x) entirely in cash or (y) in cash equal addition to the aggregate par value of Minimum Condition and the Top-Up Option Shares and by issuance by us to ArcSight of a full recourse unsecured promissory note. Pursuant conditions to the terms Offer set forth in Annex I of the Merger Agreement, the Top-Up Option is exercisable at which are summarized in Section 15 — “Conditions to Purchaser’s Obligations,” in this Offer to Purchase or (e) cause any one time on modification of or prior to the fifth business day after the later of (x) the acceptance for payment of Shares pursuant amendment to the Offer and (y) the expiration of any subsequent offering period. The Top-Up Option will terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination that would require an extension or delay of the Merger Agreement in accordance with its terms. The Merger Agreement provides that the Top-Up Option is not exercisable to the extent that the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued Shares. We could also acquire additional Shares after completion of the Offer through then current Expiration Date (other means, such as open market purchases. In any event, if we acquire at least 90% of the issued and outstanding Shares entitled to vote on the adoption of the Merger Agreement, we would effect the Merger under the "short-form" merger provisions of the DGCL. Stockholders who have not sold their Shares than an increase in the Offer would have certain appraisal rights with respect Price or a one-time decrease in the Minimum condition to the Merger under the applicable provisions of the DGCL, if those rights are perfected. The Merger. The Merger Agreement provides that, at the Effective Time, Purchaser will be merged with and into ArcSight with ArcSight being the surviving corporation (the "Surviving Corporation"). Following the Merger, the separate existence of Purchaser will cease, and ArcSight will continue as the Surviving Corporation and a wholly-owned, direct or indirect, subsidiary of HP. Pursuant to the Merger Agreement, each Share outstanding owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, will be cancelled and extinguished without any conversion thereof or consideration paid therefor. Pursuant to the Merger Agreement, each Share that is outstanding immediately prior to the Effective Time (other than (A) Shares owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, and (B) any Dissenting Shares (as defined below)) will be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to not less than the Offer Price (the "Merger Consideration"Lowered Minimum Condition), without interest thereon and less any applicable withholding taxes, upon the surrender of the certificate representing such Share in the manner provided in the Merger Agreement. Shares that are issued and outstanding immediately prior to the Effective Time and held by a stockholder (if any) who is entitled to demand, and who properly demands, appraisal for such Shares in accordance with Section 262 of the DGCL ("Dissenting Shares") will not be converted into, or represent the right to receive, the Merger Consideration but rather such stockholder will be entitled to receive payment of the appraised value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL. However, all Dissenting Shares held by stockholders who have failed to perfect or who have otherwise waived, withdrawn or lost their rights to appraisal of such Dissenting Shares under such Section 262 of the DGCL will no longer be considered to be Dissenting Shares and will thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without interest thereon and less any applicable withholding taxes, upon surrender of the certificate or certificates that formerly evidenced such Shares in the manner provided in the Merger Agreement. Stockholders who tender their Shares in the Offer will not be entitled to exercise appraisal rights with respect to such Shares, but rather, subject to the conditions of the Offer, will receive the Offer Price.

The Merger Agreement. This section of the Offer to Purchase describes certain provisions The following summary description of the Merger Agreement but does not purport to describe all of the terms of the Merger Agreement. The following summary is qualified in its entirety by reference to the complete text of the entire Merger Agreement, which is Purchaser has filed as an exhibit to the Tender Offer Statement on Schedule TO that Purchaser has filed with the SEC, which you may examine and is incorporated herein by reference. You are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Merger. The Merger Agreement may be examined and copies may be obtained in the manner copy as set forth in Section 8—"Certain 9 — “Information Concerning ArcSight—Available InformationGetinge and Purchaser." ” The Merger Agreement is not intended to provide you with any other factual information about HP, Purchaser or ArcSight. Such information can be found elsewhere in this Offer to PurchaseOffer. The Merger Agreement provides that following Purchaser will commence the Offer promptly after September 15, 2008, and in any event on or prior to September 30, 2008 and that, upon the terms and subject to the conditions of the Offer, including the prior satisfaction or waiver of the conditions described in this Section 12 under "—Conditions to the Merger," Purchaser will be merged with and into ArcSight and each then outstanding Share (other than Shares owned directly by HP, Purchaser or ArcSight, or Shares that are held by stockholders, in each case, if any, who are entitled to and who properly exercise appraisal rights under the DGCL) will be converted into the right to receive cash in an amount equal to the Offer Price, without interest thereon as set forth in Section 14 — “Conditions of the Offer,” Purchaser will purchase all Shares validly tendered and less any applicable withholding taxesnot properly withdrawn pursuant to the Offer. The Merger Agreement provides that, notwithstanding anything without the prior written consent of Datascope, Purchaser will not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) impose conditions to the contrary Offer that are different from, or in addition to, the conditions set forth in the Merger Agreement, (iv) we will waive the Minimum Condition as defined in the Merger Agreement, (vi) amend any of the conditions to the Offer set forth in the Merger Agreement in a manner adverse to the holders of the Shares or (vii) extend the expiration of the Offer in a manner other than as required by the Merger Agreement. Purchaser (a) shall, until at least June 15, 2009, extend the Offer for one or more periods of five (5) business days if, at the then-scheduled Expiration Date, any of the conditions of the Offer have not been satisfied or waived, or (b) may, without the consent of Datascope, if all of the conditions of the Offer are satisfied but the number of Shares that have been validly tendered and not properly withdrawn in the Offer, together with any Shares then owned by Getinge, is less than ninety percent (90%) of the outstanding Shares, commence a subsequent offering period for three to twenty business days to acquire the remaining outstanding Shares. Purchaser shall extend the Offer for any period required by any rule applicable law, rule, regulation, interpretation or regulation position of the SEC (or the NASDAQ, in any such case which is applicable to the Offer; and (ii) in the event that all of the conditions to the Offer, including the Minimum Condition or any of the other conditions set forth in Section 14—"Conditions of the Offer," are not satisfied or waived (if permitted under the Merger Agreement) as of any then scheduled expiration of the Offer, we will extend the Offer for successive extension periods of up to 10 business days each in order to permit the satisfaction of all of the conditions to the Offer. However, we are not obligated under the Merger Agreement to extend the Offer beyond the Initial Termination Date (as defined belowits staff) or the Extended Termination Date (as defined below), as applicable, or if the Merger Agreement is terminated pursuant to its terms. In addition, the Merger Agreement provides that, following our acquisition of Shares in the Offer, we may provide a subsequent offering period (in accordance with Rule 14d-11 of the Exchange Act. A subsequent offering period would be an additional period of time of at least 3 business days and not more than 20 business days following the expiration of the Offer during which stockholders may tender Shares not tendered in the Offer and receive the same Offer Price paid in the Offer, without interest thereon and less any applicable withholding taxes. During a subsequent offering period, we will promptly pay for Shares that are validly tendered during such subsequent offering period, and tendering stockholders will not have withdrawal rights. Top-Up Option. Pursuant to the terms of the Merger Agreement following the Appointment Time, if we acquire more than a majority but less than 90% of the Shares outstanding, we have the option (the "Top-Up Option") to purchase from ArcSight, subject to certain limitations, up to a number of additional Shares (the "Top-Up Option Shares") sufficient to cause HP and Purchaser to own one (1) Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the option, calculated on a fully-diluted basis (assuming the issuance of all Shares issuable upon the conversion or exercise of options, rights and securities that are then convertible into or exercisable for Shares). The exercise price per Share for the Top-Up Option would equal the Offer Price and would be paid (x) entirely in cash or (y) in cash equal to the aggregate par value of the Top-Up Option Shares and by issuance by us to ArcSight of a full recourse unsecured promissory note. Pursuant to the terms of the Merger Agreement, the Top-Up Option is exercisable at any one time on or prior to the fifth business day after the later of (x) the acceptance for payment of Shares pursuant to the Offer and (y) the expiration of any subsequent offering period. The Top-Up Option will terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms. The Merger Agreement provides that the Top-Up Option is not exercisable to the extent that the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued Shares. We could also acquire additional Shares after completion of the Offer through other means, such as open market purchases. In any event, if we acquire at least 90% of the issued and outstanding Shares entitled to vote on the adoption of the Merger Agreement, we would effect the Merger under the "short-form" merger provisions of the DGCL. Stockholders who have not sold their Shares in the Offer would have certain appraisal rights with respect to the Merger under the applicable provisions of the DGCL, if those rights are perfected. The Merger. The Merger Agreement provides that, at the Effective Time, Purchaser will be merged with and into ArcSight with ArcSight being the surviving corporation (the "Surviving Corporation"). Following the Merger, the separate existence of Purchaser will cease, and ArcSight will continue as the Surviving Corporation and a wholly-owned, direct or indirect, subsidiary of HP. Pursuant to the Merger Agreement, each Share outstanding owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, will be cancelled and extinguished without any conversion thereof or consideration paid therefor. Pursuant to the Merger Agreement, each Share that is outstanding immediately prior to the Effective Time (other than (A) Shares owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, and (B) any Dissenting Shares (as defined below)) will be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to the Offer Price (the "Merger Consideration"), without interest thereon and less any applicable withholding taxes, upon the surrender of the certificate representing such Share in the manner provided in the Merger Agreement. Shares that are issued and outstanding immediately prior to the Effective Time and held by a stockholder (if any) who is entitled to demand, and who properly demands, appraisal for such Shares in accordance with Section 262 of the DGCL ("Dissenting Shares") will not be converted into, or represent the right to receive, the Merger Consideration but rather such stockholder will be entitled to receive payment of the appraised value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL. However, all Dissenting Shares held by stockholders who have failed to perfect or who have otherwise waived, withdrawn or lost their rights to appraisal of such Dissenting Shares under such Section 262 of the DGCL will no longer be considered to be Dissenting Shares and will thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without interest thereon and less any applicable withholding taxes, upon surrender of the certificate or certificates that formerly evidenced such Shares in the manner provided in the Merger Agreement. Stockholders who tender their Shares in the Offer will not be entitled to exercise appraisal rights with respect to such Shares, but rather, subject to the conditions of the Offer, will receive the Offer PriceNASDAQ.

The Merger Agreement. This section The following is a summary of the Offer to Purchase describes certain provisions of the Merger Agreement but does not purport to describe all of the terms of the Merger Agreement. The following summary is qualified in its entirety by reference to the complete text of the Merger Agreement, which is filed as an exhibit to the Schedule TO and is incorporated herein by referencereference and a copy of which is attached hereto as Annex A. The Offer. You are encouraged Pursuant to read the full text Merger Agreement, the Purchaser is obligated to commence the Offer as promptly as practicable after the date of the Merger Agreement because it is Agreement. On the legal document that governs terms and subject to the conditions of the Offer and the MergerMerger Agreement, the Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer prior to the expiration of the Offer, or any extension of it. The Merger Agreement obligations of the Purchaser to accept for payment, and pay for, the Shares are subject to the conditions specified in "THE OFFER, Section 12 -- Conditions to the Offer." The Purchaser expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer except that, without the consent of the Special Committee, the Purchaser may not (i) waive the Minimum Condition (as defined below), (ii) reduce the price per Share or change the form of consideration to be examined and copies may be obtained in paid pursuant to the manner Offer, (iii) decrease the number of Shares sought pursuant to the Offer, (iv) add to the conditions set forth in Section 8—"Certain Information Concerning ArcSight—Available Information." The Merger Agreement is not intended to provide you with any other factual information about HP"THE OFFER, Purchaser or ArcSight. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement provides that following the satisfaction or waiver of the conditions described in this Section 12 under "—-- Conditions to the Merger,Offer" Purchaser will be merged with and into ArcSight and each then outstanding Share (other than Shares owned directly by HP, Purchaser or ArcSight, or Shares that are held by stockholders, modify any such condition in each case, if any, who are entitled to and who properly exercise appraisal rights under the DGCL) will be converted into the right to receive cash in an amount equal any manner adverse to the holders of Shares or (v) otherwise amend the Offer Pricein any manner adverse to the holders of Shares. Notwithstanding the foregoing, the Purchaser may, without interest thereon and less any applicable withholding taxes. The Merger Agreement provides that, notwithstanding anything to the contrary set forth in consent of the Merger AgreementCompany, (ix) we will extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the SEC or the NASDAQ, in any such case which is staff thereof applicable to the Offer; Offer and (iiy) make available a "subsequent offering period," in the event that all accordance with Rule 14d-11 of the conditions to the OfferSEC, including the Minimum Condition or any of the other conditions set forth in Section 14—"Conditions of the Offer," are not satisfied or waived less than three (if permitted under the Merger Agreement3) as of any then scheduled expiration of the Offer, we will extend the Offer for successive extension periods of up to 10 nor greater than twenty (20) business days each in order to permit the satisfaction of all of the conditions to the Offerdays. However, we are not obligated The Purchaser is required under the Merger Agreement to extend the Offer beyond following its initial expiration upon the Initial Termination Date (as defined below) or the Extended Termination Date (as defined below), as applicable, or if the Merger Agreement is terminated pursuant to its terms. In addition, the Merger Agreement provides that, following our acquisition of Shares in the Offer, we may provide a subsequent offering period (in accordance with Rule 14d-11 prior written request of the Exchange Act. A subsequent offering period would be an additional period of time of at least 3 business days and not more than 20 business days following the expiration of the Offer during which stockholders may tender Shares not tendered in the Offer and receive the same Offer Price paid in the Offer, without interest thereon and less any applicable withholding taxes. During a subsequent offering period, we will promptly pay Special Committee for Shares that are validly tendered during such subsequent offering period, and tendering stockholders will not have withdrawal rights. Top-Up Option. Pursuant to the terms of the Merger Agreement following the Appointment Time, if we acquire more than a majority but less than 90% of the Shares outstanding, we have the option (the "Top-Up Option") to purchase from ArcSight, subject to certain limitations, up to a number of additional Shares (days as is necessary to satisfy the "Top-Up Option Shares") sufficient to cause HP and Purchaser to own one (1) Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the option, calculated on a fully-diluted basis (assuming the issuance of all Shares issuable upon the conversion or exercise of options, rights and securities that are then convertible into or exercisable for Shares). The exercise price per Share for the Top-Up Option would equal the Offer Price and would be paid (x) entirely in cash or (y) in cash equal to the aggregate par value of the Top-Up Option Shares and by issuance by us to ArcSight of a full recourse unsecured promissory note. Pursuant to the terms of the Merger Agreement, the Top-Up Option is exercisable at any one time on or prior to the fifth business day after the later of (x) the acceptance for payment of Shares pursuant conditions to the Offer and (y) the expiration of any subsequent offering period. The Top-Up Option will terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of the Merger Agreement set forth in accordance with its terms. The Merger Agreement provides that the Top-Up Option is not exercisable "THE OFFER, Section 12 -- Conditions to the extent that Offer" but in no event shall the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued Shares. We could also acquire additional Shares after completion of Purchaser be required to extend the Offer through other meanslater than December 31, such as open market purchases. In any event, if we acquire at least 90% of the issued and outstanding Shares entitled to vote on the adoption of the Merger Agreement, we would effect the Merger under the "short-form" merger provisions of the DGCL. Stockholders who have not sold their Shares in the Offer would have certain appraisal rights with respect to the Merger under the applicable provisions of the DGCL, if those rights are perfected2000. The Merger. The Merger Agreement provides that, at on the Effective Timeterms and subject to the conditions set forth therein, following the expiration of the Offer, the Purchaser will be merged with and into ArcSight the Company in accordance with ArcSight being the surviving corporation (applicable provisions of the "Surviving Corporation")DGCL. Following the Merger, the separate corporate existence of the Purchaser will shall cease, and ArcSight the Company will continue as the Surviving Corporation and a wholly-owned, direct or indirect, subsidiary of HP. Pursuant to the Merger Agreement, each Share outstanding owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, will be cancelled and extinguished without any conversion thereof or consideration paid therefor. Pursuant to the Merger Agreement, each Share that is outstanding immediately prior to the Effective Time (other than (A) Shares owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, and (B) any Dissenting Shares (as defined below)) will be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to the Offer Price (the "Merger Consideration"), without interest thereon and less any applicable withholding taxes, upon the surrender of the certificate representing such Share in the manner provided in the Merger Agreement. Shares that are issued and outstanding immediately prior to the Effective Time and held by a stockholder (if any) who is entitled to demand, and who properly demands, appraisal for such Shares in accordance with Section 262 of the DGCL ("Dissenting Shares") will not be converted into, or represent the right to receive, the Merger Consideration but rather such stockholder will be entitled to receive payment of the appraised value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL. However, all Dissenting Shares held by stockholders who have failed to perfect or who have otherwise waived, withdrawn or lost their rights to appraisal of such Dissenting Shares under such Section 262 of the DGCL will no longer be considered to be Dissenting Shares and will thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without interest thereon and less any applicable withholding taxes, upon surrender of the certificate or certificates that formerly evidenced such Shares in the manner provided in the Merger Agreement. Stockholders who tender their Shares in the Offer will not be entitled to exercise appraisal rights with respect to such Shares, but rather, subject to the conditions of the Offer, will receive the Offer Pricesurviving corporation.

The Merger Agreement. This section The following is a summary of the Offer to Purchase describes certain provisions of the Merger Agreement but does not purport to describe all of the terms of the Merger Agreement. The following This summary is qualified in its entirety by reference to the complete 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 we have filed with the SEC on December 7, 2015 (the “Schedule TO”) and which is incorporated herein by reference. You are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Merger. The Merger Agreement may be examined and copies may be obtained in the manner set forth in Section 8—"Certain 8 — “Certain Information Concerning ArcSight—Available InformationTCS." ” The Merger Agreement is not intended to provide you with any other factual information about HP, Purchaser or ArcSight. Such information can be found elsewhere in this Offer to PurchaseOffer. The Merger Agreement provides that following Purchaser will commence the Offer and that, upon the terms and subject to prior satisfaction or waiver of the conditions Offer Conditions described in this Section 12 under "—13 — “Conditions to of the Merger," Offer” (including, if the Offer is extended or amended in accordance with the terms of the Merger Agreement, the terms and conditions of any extension or amendment), Purchaser will be merged with accept for payment, and into ArcSight pay for, all Shares validly tendered and each then outstanding Share (other than Shares owned directly by HP, Purchaser or ArcSight, or Shares that are held by stockholders, in each case, if any, who are entitled to and who properly exercise appraisal rights under the DGCL) will be converted into the right to receive cash in an amount equal not withdrawn pursuant to the Offer Price, without interest thereon and less any applicable withholding taxespromptly after the Expiration Date (the “Acceptance Time”). The Merger Agreement provides that, notwithstanding anything to the contrary set forth in the Merger Agreement, requires us to: (i) we will extend the Offer for any period required by any rule or regulation of the SEC or the NASDAQ, in any such case which is applicable to the Offer; and (ii) in the event that all of the conditions to the Offer, including the Minimum Condition or any of the other conditions set forth in Section 14—"Conditions of the Offer," are not satisfied or waived (if permitted under the Merger Agreement) as of any then scheduled expiration of the Offer, we will extend the Offer for successive extension periods of up to 10 business days each (or such longer period of up to 20 business days per extension if Comtech desires and TCS consents in order writing prior to permit such extension) if any Offer Conditions (other than the satisfaction of all Minimum 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 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 20 business days per extension if Comtech desires and TCS consents in writing prior to such extension) if all the Offer Conditions (other than the Minimum Condition) have been satisfied or have been waived (provided that the Offer does not expire more than three business days following the end of the Marketing Period and Purchaser will not be required to 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. However; provided, we are however, unless previously approved by TCS in writing, Comtech and Purchaser may not obligated under the Merger Agreement to extend the Offer beyond the Initial Termination Date (as defined below) or the Extended Termination Date (as defined below), as applicable, or if the Merger Agreement is terminated pursuant to its terms. In addition, the Merger Agreement provides that, following our acquisition of Shares in the Offer, we may provide for a “subsequent offering period period” (in accordance with within the meaning of Rule 14d-11 of under the Exchange Act. A subsequent offering period would be an additional period of time of at least 3 business days and not more than 20 business days following the expiration of the Offer during which stockholders may tender Shares not tendered in the Offer and receive the same Offer Price paid in the Offer, without interest thereon and less any applicable withholding taxes. During a subsequent offering period, we will promptly pay for Shares that are validly tendered during such subsequent offering period, and tendering stockholders will not have withdrawal rights. Top-Up Option. Pursuant to the terms of the Merger Agreement following the Appointment Time, if we acquire more than a majority but less than 90% of the Shares outstanding, we have the option (the "Top-Up Option") to purchase from ArcSight, subject to certain limitations, up to a number of additional Shares (the "Top-Up Option Shares") sufficient to cause HP and Purchaser to own one (1) Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the option, calculated on a fully-diluted basis (assuming the issuance of all Shares issuable upon the conversion or exercise of options, rights and securities that are then convertible into or exercisable for Shares). The exercise price per Share for the Top-Up Option would equal the Offer Price and would be paid (x) entirely in cash or (y) in cash equal to the aggregate par value of the Top-Up Option Shares and by issuance by us to ArcSight of a full recourse unsecured promissory note. Pursuant to the terms of the Merger Agreement, the Top-Up Option is exercisable at any one time on or prior to the fifth business day after the later of (x) the acceptance for payment of Shares pursuant to the Offer and (y) the expiration of any subsequent offering period. The Top-Up Option will terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms. The Merger Agreement provides that the Top-Up Option is not exercisable to the extent that the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued Shares. We could also acquire additional Shares after completion of the Offer through other means, such as open market purchases. In any event, if we acquire at least 90% of the issued and outstanding Shares entitled to vote on the adoption of the Merger Agreement, we would effect the Merger under the "short-form" merger provisions of the DGCL. Stockholders who have not sold their Shares in the Offer would have certain appraisal rights with respect to the Merger under the applicable provisions of the DGCL, if those rights are perfected. The Merger. The Merger Agreement provides that, at the Effective Time, Purchaser will be merged with and into ArcSight with ArcSight being the surviving corporation (the "Surviving Corporation"). Following the Merger, the separate existence of Purchaser will cease, and ArcSight will continue as the Surviving Corporation and a wholly-owned, direct or indirect, subsidiary of HP. Pursuant to the Merger Agreement, each Share outstanding owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, will be cancelled and extinguished without any conversion thereof or consideration paid therefor. Pursuant to the Merger Agreement, each Share that is outstanding immediately prior to the Effective Time (other than (A) Shares owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, and (B) any Dissenting Shares (as defined below)) will be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to the Offer Price (the "Merger Consideration"), without interest thereon and less any applicable withholding taxes, upon the surrender of the certificate representing such Share in the manner provided in the Merger Agreement. Shares that are issued and outstanding immediately prior to the Effective Time and held by a stockholder (if any) who is entitled to demand, and who properly demands, appraisal for such Shares in accordance with Section 262 of the DGCL ("Dissenting Shares") will not be converted into, or represent the right to receive, the Merger Consideration but rather such stockholder will be entitled to receive payment of the appraised value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL. However, all Dissenting Shares held by stockholders who have failed to perfect or who have otherwise waived, withdrawn or lost their rights to appraisal of such Dissenting Shares under such Section 262 of the DGCL will no longer be considered to be Dissenting Shares and will thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without interest thereon and less any applicable withholding taxes, upon surrender of the certificate or certificates that formerly evidenced such Shares in the manner provided in the Merger Agreement. Stockholders who tender their Shares in the Offer will not be entitled to exercise appraisal rights with respect to such Shares, but rather, subject to the conditions of the Offer, will receive the Offer Price.

The Merger Agreement. This section of the Offer to Purchase describes certain provisions of the Merger Agreement but does not purport to describe all of the terms of the The Merger Agreement. The following summary of certain provisions of the Merger Agreement, a copy of which is filed as an exhibit to the Schedule 14D-1 referred to in Section 18, is qualified in its entirety by reference to the complete text of the Merger Agreement, which is filed as an exhibit to the Schedule TO and is incorporated herein by reference. You are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Merger. The Merger Agreement may be examined and copies may be obtained Capitalized terms used in the manner set forth in Section 8—"Certain Information Concerning ArcSight—Available Information." The Merger Agreement is following summary and not intended to provide you with any other factual information about HP, Purchaser or ArcSight. Such information can be found elsewhere otherwise defined in this Offer to PurchasePurchase shall have the meanings set forth in the Merger Agreement. The Offer. The Merger Agreement provides that following the Purchaser will commence the Offer and that, upon the terms and subject to the prior satisfaction or waiver of the conditions described in this Section 12 under "—Conditions of the Offer, the Purchaser will purchase all Shares validly tendered pursuant to the Merger," Offer. The Merger Agreement provides that, without the written 22 consent of the Company, the Purchaser will not (i) reduce the number of Common Shares and Preferred Shares to be merged with and into ArcSight and each then outstanding purchased in the Offer; (ii) reduce the Common Share (other than Shares owned directly by HP, Purchaser Offer Price or ArcSight, or Shares that are held by stockholders, in each case, if any, who are entitled to and who properly exercise appraisal rights under the DGCL) will be converted into the right to receive cash in an amount equal to the Preferred Share Offer Price, without interest thereon except as otherwise provided in the Merger Agreement; (iii) modify or add to the conditions of the Offer in any manner that the Board of Trustees of the Company, in the exercise of its fiduciary obligations, determines to be adverse to the holders of Common Shares or Preferred Shares; (iv) except as provided in the Merger Agreement, extend the Offer; (v) change the form of consideration payable in the Offer; or (vi) amend any other term of the Offer in a manner that the Board of Trustees of the Company, in the exercise of its fiduciary obligations, determines to be adverse to the holders of Common Shares and less any applicable withholding taxesPreferred Shares. The Merger Agreement provides that, notwithstanding anything to the contrary set forth in foregoing, the Merger AgreementPurchaser may, without the consent of the Company, (i) we will extend the Offer beyond the Expiration Date for a period not to exceed 20 business days, if at the Expiration Date any of the conditions to the Purchaser's obligation to accept for payment, and pay for, Common Shares and Preferred Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived; or (ii) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the SEC Commission or the NASDAQ, in any such case which is staff thereof applicable to the Offer; and (ii) in the event that all of the conditions to the Offer, including the Minimum Condition or any of the other conditions set forth in Section 14—"Conditions of the Offer," are not satisfied or waived (if permitted under the Merger Agreement) as of any then scheduled expiration of the Offer, we will extend the Offer for successive extension periods of up to 10 business days each in order to permit the satisfaction of all of the conditions to the Offer. However, we are not obligated under the Merger Agreement to extend the Offer beyond the Initial Termination Date (as defined below) or the Extended Termination Date (as defined below), as applicable, or if the Merger Agreement is terminated pursuant to its terms. In addition, the Merger Agreement provides that, following our acquisition of Shares in the Offer, we may provide a subsequent offering period (in accordance with Rule 14d-11 of the Exchange Act. A subsequent offering period would be an additional period of time of at least 3 business days and not more than 20 business days following the expiration of the Offer during which stockholders may tender Shares not tendered in the Offer and receive the same Offer Price paid in the Offer, without interest thereon and less any applicable withholding taxes. During a subsequent offering period, we will promptly pay for Shares that are validly tendered during such subsequent offering period, and tendering stockholders will not have withdrawal rights. Top-Up Option. Pursuant to the terms of the Merger Agreement following the Appointment Time, if we acquire more than a majority but less than 90% of the Shares outstanding, we have the option (the "Top-Up Option") to purchase from ArcSight, subject to certain limitations, up to a number of additional Shares (the "Top-Up Option Shares") sufficient to cause HP and Purchaser to own one (1) Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the option, calculated on a fully-diluted basis (assuming the issuance of all Shares issuable upon the conversion or exercise of options, rights and securities that are then convertible into or exercisable for Shares). The exercise price per Share for the Top-Up Option would equal the Offer Price and would be paid (x) entirely in cash or (y) in cash equal to the aggregate par value of the Top-Up Option Shares and by issuance by us to ArcSight of a full recourse unsecured promissory note. Pursuant to the terms of the Merger Agreement, the Top-Up Option is exercisable at any one time on or prior to the fifth business day after the later of (x) the acceptance for payment of Shares pursuant to the Offer and (y) the expiration of any subsequent offering period. The Top-Up Option will terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms. The Merger Agreement provides that the Top-Up Option is not exercisable to the extent that the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued Shares. We could also acquire additional Shares after completion of the Offer through other means, such as open market purchases. In any event, if we acquire at least 90% of the issued and outstanding Shares entitled to vote on the adoption of the Merger Agreement, we would effect the Merger under the "short-form" merger provisions of the DGCL. Stockholders who have not sold their Shares in the Offer would have certain appraisal rights with respect to the Merger under the applicable provisions of the DGCL, if those rights are perfected. The Merger. The Merger Agreement provides that, following the consummation of the Offer and subject to the terms and conditions thereof, at the Effective Time, Time the Purchaser will shall be merged with and into ArcSight with ArcSight being the surviving corporation (the "Surviving Corporation"). Following Company and, as a result of the Merger, the separate corporate existence of the Purchaser will shall cease, and ArcSight will the Company shall continue as the Surviving Corporation and a wholly-owned, direct or indirect, subsidiary of HP. Pursuant to the Merger Agreement, each Share outstanding owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HPEastGroup. The respective obligations of EastGroup and the Purchaser, Purchaser or ArcSighton the one hand, in each case immediately prior and the Company, on the other hand, to effect the Merger are subject to the Effective Time, will be cancelled and extinguished without any conversion thereof satisfaction at or consideration paid therefor. Pursuant to the Merger Agreement, each Share that is outstanding immediately prior to the Effective Time of each of the following conditions: (i) the Merger Agreement shall have been approved by the requisite vote of the shareholders, if required by applicable law, in order to consummate the Merger; (ii) no temporary restraining order, preliminary or permanent injunction or other order by any United States federal or state court or governmental body which prohibits the consummation of the transactions contemplated by the Merger Agreement shall have been issued; provided, however, that the Purchaser, EastGroup and the Company shall have used all reasonable efforts to have such order or injunction vacated or reversed; and (iii) if applicable, the waiting period under the HSR Act shall have expired or shall have been terminated. At the Effective Time of the Merger, each Preferred Share issued and outstanding (other than (A) Dissenting Shares owned representing Preferred Shares and those Preferred Shares held by HPthe Company, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HPthe Company, EastGroup or the Purchaser or ArcSight, in each case immediately prior which are to be canceled pursuant to the Effective Time, and (BMerger Agreement) any Dissenting Shares (as defined below)) will shall be canceled and extinguished and automatically converted into the right to receive cash in an amount equal cash, without interest, the price per Preferred Share paid pursuant to the Offer Price (the "Preferred Merger ConsiderationPrice"), without interest thereon and less any applicable withholding taxes, upon . At the surrender Effective Time of the certificate Merger, each Common Share issued and outstanding (other than Dissenting Shares representing such Share in Common Shares and those Common Shares held by the manner provided in Company, any subsidiary of the Company, EastGroup or the Purchaser which are to be canceled pursuant to the Merger Agreement. Shares that are issued and outstanding immediately prior to the Effective Time and held by a stockholder (if any) who is entitled to demand, and who properly demands, appraisal for such Shares in accordance with Section 262 of the DGCL ("Dissenting Shares") will not shall be converted into, or represent into the right to receivereceive in cash, without interest, the price per Common Share paid pursuant to the Offer (the "Common Merger Consideration but rather such stockholder will be entitled to receive payment of the appraised value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCLPrice"). However, all Dissenting Shares held by stockholders who have failed to perfect or who have otherwise waived, withdrawn or lost their rights to appraisal of such Dissenting Shares under such Section 262 of the DGCL will no longer be considered to be Dissenting Shares and will thereupon be deemed to have been converted into, and to have become exchangeable for, Also as of the Effective Time, the right to receive the Merger Consideration, without interest thereon each issued and less any applicable withholding taxes, upon surrender outstanding share of the certificate capital stock of the Purchaser shall be converted into and become one fully paid and nonassessable common share, $0.001 par value per share, of the Surviving Corporation. The Company's Board of Trustees. The Merger Agreement provides that promptly upon the purchase by the Purchaser or certificates that formerly evidenced such EastGroup of Preferred Shares in and Common Shares pursuant to the manner provided in the Merger Agreement. Stockholders who tender their Shares in the Offer will not Offer, EastGroup shall be entitled to exercise appraisal rights with respect designate three persons to such Shares, but ratherserve as trustees on the Company's Board of Trustees, subject to the conditions compliance with Section 14(f) of the OfferExchange Act, will receive if applicable. At such time, if requested by EastGroup, the Offer Price.23

The Merger Agreement. This section of the Offer to Purchase describes certain provisions The following summary description of the Merger Agreement but does not purport to describe all of the terms of the Merger Agreement. The following summary is qualified in its entirety by reference to the complete text of the Merger AgreementAgreement itself, which is X.X. Xxxxxx and Purchaser have filed as an exhibit to the Tender Offer Statement on Schedule TO that 14 Table of Contents X.X. Xxxxxx and is incorporated herein by reference. You are encouraged to read Purchaser have filed with the full text of the Merger Agreement because it is the legal document that governs the Offer Commission, which you may examine and the Merger. The Merger Agreement may be examined and copies may be obtained in the manner copy as set forth in Section 8—"Certain 8 — “Information Concerning ArcSight—Available InformationPortec” and Section 9 — “Information Concerning X.X. Xxxxxx and Purchaser." ” The Merger Agreement is not intended to provide you with any other factual information about HP, Purchaser or ArcSight. Such information can be found elsewhere in this Offer to PurchaseOffer. The Merger Agreement provides that following Purchaser will commence the Offer within ten business days of the date of the Merger Agreement, and that, upon the terms and subject to prior satisfaction or waiver of the conditions described of the Offer, as set forth in this Section 12 under "—14 — “Conditions of the Offer”, Purchaser will purchase all Shares validly tendered and not withdrawn pursuant to the Merger," Purchaser will be merged with and into ArcSight and each then outstanding Share (other than Shares owned directly by HP, Purchaser or ArcSight, or Shares that are held by stockholders, in each case, if any, who are entitled to and who properly exercise appraisal rights under the DGCL) will be converted into the right to receive cash in an amount equal to the Offer Price, without interest thereon and less any applicable withholding taxesOffer. The Merger Agreement provides that, notwithstanding anything without the prior written consent of Portec, Purchaser will not (i) decrease the Offer Price, (ii) decrease the aggregate number of Company Common Shares sought, (iii) change the form of consideration to be paid pursuant to the contrary set forth Offer, (iv) amend or waive the Minimum Condition, (v) impose conditions to the Offer in addition to those included in the Merger Agreement, (ivi) we will except as provided in the proviso set forth below in this paragraph, extend the Offer, (vii) amend or waive the conditions set forth in clauses (ii)(a) and (b) of the conditions set forth in Section 14 — “Conditions of the Offer” or (viii) amend any other term or condition of the Offer in any manner which is adverse to the holders of Company Common Shares, it being agreed that a waiver by Purchaser of any condition in its discretion shall not be deemed to be adverse to the holders of Company Common Shares; provided that, if on any scheduled Expiration Date of the Offer (as it may be extended in accordance with the terms of the Merger Agreement), all conditions to the Offer shall not have been satisfied or waived, Purchaser may, without the consent of the Company, (x) from time to time, extend the Offer in increments as determined by Purchaser to be reasonably necessary to cause such conditions to be satisfied and (y) extend the Offer for any period required by any rule regulation, interpretation or regulation position of the SEC Securities and Exchange Commission or the NASDAQ, in any such case which is staff thereof applicable to the Offer; and (ii) in the event that all provided, further, that, if on any scheduled Expiration Date of the Offer (as it may be extended in accordance with the terms of the Merger Agreement), all conditions to the OfferOffer shall not have been satisfied or waived, including Portec may cause Purchaser to extend the Expiration Date by ten business days; provided, however, that the Expiration Date may not be extended more than once pursuant to such clause. Purchaser may also extend the Offer by no more than 20 business days if the Minimum Condition or any has been satisfied but less than 90% of the other conditions set forth in Section 14—"Conditions of the Offer," are not satisfied or waived (if permitted under the Merger Agreement) as of any then scheduled expiration of the Offer, we will extend the Offer shares have been tendered. Purchaser may also provide for successive extension periods of up to 10 business days each in order to permit the satisfaction of all of the conditions to the Offer. However, we are not obligated under the Merger Agreement to extend the Offer beyond the Initial Termination Date (as defined below) or the Extended Termination Date (as defined below), as applicable, or if the Merger Agreement is terminated pursuant to its terms. In addition, the Merger Agreement provides that, following our acquisition of Shares in the Offer, we may provide a subsequent offering period (Subsequent Offering Period in accordance with Rule 14d-11 of the Exchange Act. A subsequent offering period would be an additional period of time of at least 3 business days and not more than 20 business days following the expiration of the Offer during which stockholders may tender Shares not tendered in the Offer and receive the same Offer Price paid in the Offer, without interest thereon and less any applicable withholding taxes. During a subsequent offering period, we will promptly pay for Shares that are validly tendered during such subsequent offering period, and tendering stockholders will not have withdrawal rights. Top-Up Option. Pursuant to the terms of the Merger Agreement following the Appointment Time, if we acquire more than a majority but less than 90% of the Shares outstanding, we have the option (the "Top-Up Option") to purchase from ArcSight, subject to certain limitations, up to a number of additional Shares (the "Top-Up Option Shares") sufficient to cause HP and Purchaser to own one (1) Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the option, calculated on a fully-diluted basis (assuming the issuance of all Shares issuable upon the conversion or exercise of options, rights and securities that are then convertible into or exercisable for Shares). The exercise price per Share for the Top-Up Option would equal the Offer Price and would be paid (x) entirely in cash or (y) in cash equal to the aggregate par value of the Top-Up Option Shares and by issuance by us to ArcSight of a full recourse unsecured promissory note. Pursuant to the terms of the Merger Agreement, the Top-Up Option is exercisable at any one time on or prior to the fifth business day after the later of (x) the acceptance for payment of Shares pursuant to the Offer and (y) the expiration of any subsequent offering period. The Top-Up Option will terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms. The Merger Agreement provides that the Top-Up Option is not exercisable to the extent that the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued Shares. We could also acquire additional Shares after completion of the Offer through other means, such as open market purchases. In any event, if we acquire at least 90% of the issued and outstanding Shares entitled to vote on the adoption of the Merger Agreement, we would effect the Merger under the "short-form" merger provisions of the DGCL. Stockholders who have not sold their Shares in the Offer would have certain appraisal rights with respect to the Merger under the applicable provisions of the DGCL, if those rights are perfected. The Merger. The Merger Agreement provides that, at the Effective Time, Purchaser will be merged with and into ArcSight with ArcSight being the surviving corporation (the "Surviving Corporation"). Following the Merger, the separate existence of Purchaser will cease, and ArcSight will continue as the Surviving Corporation and a wholly-owned, direct or indirect, subsidiary of HP. Pursuant to the Merger Agreement, each Share outstanding owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, will be cancelled and extinguished without any conversion thereof or consideration paid therefor. Pursuant to the Merger Agreement, each Share that is outstanding immediately prior to the Effective Time (other than (A) Shares owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, and (B) any Dissenting Shares (as defined below)) will be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to the Offer Price (the "Merger Consideration"), without interest thereon and less any applicable withholding taxes, upon the surrender of the certificate representing such Share in the manner provided in the Merger Agreement. Shares that are issued and outstanding immediately prior to the Effective Time and held by a stockholder (if any) who is entitled to demand, and who properly demands, appraisal for such Shares in accordance with Section 262 of the DGCL ("Dissenting Shares") will not be converted into, or represent the right to receive, the Merger Consideration but rather such stockholder will be entitled to receive payment of the appraised value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL. However, all Dissenting Shares held by stockholders who have failed to perfect or who have otherwise waived, withdrawn or lost their rights to appraisal of such Dissenting Shares under such Section 262 of the DGCL will no longer be considered to be Dissenting Shares and will thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without interest thereon and less any applicable withholding taxes, upon surrender of the certificate or certificates that formerly evidenced such Shares in the manner provided in the Merger Agreement. Stockholders who tender their Shares in the Offer will not be entitled to exercise appraisal rights with respect to such Shares, but rather, subject to the conditions of the Offer, will receive the Offer Price.