Foundry's 'out' option in Brocade deal is almost up

Eleven days after it was allowed to do so, Foundry Networks has until Friday to seek or consider offers from buyers other than Brocade Communications.

As part of the amended merger agreement the companies recently hammered out, Foundry could have sought or entertained buyout proposals from Nov. 7 until Nov. 21. The amended deal lowered the price Brocade would pay for Foundry from $3 billion to $2.6 billion.

According to an 8-K filed last Thursday with the SEC: "The Amendment also provides that Foundry may solicit, discuss, negotiate or furnish information in connection with acquisition inquiries or acquisition proposals during the period commencing on November 7, 2008, and ending on November 21, 2008. If, during that period, Foundry receives an acquisition proposal that constitutes or is reasonably likely to lead to a superior proposal, as defined in the Amended Merger Agreement, then Foundry may continue to discuss such acquisition proposal with the person or entity that made such acquisition proposal."

The companies can also terminate the deal, "under certain circumstances," including the failure of the merger to be consummated on or before Dec. 31. Foundry shareholders still have to approve it, too. 

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Eleven days after it was allowed to do so, Foundry Networks has until Friday to seek or consider offers from buyers other than Brocade Communications.

As part of the amended merger agreement the companies recently hammered out, Foundry could have sought or entertained buyout proposals from Nov. 7 until Nov. 21. The amended deal lowered the price Brocade would pay for Foundry from $3 billion to $2.6 billion.

According to an 8-K filed last Thursday with the SEC: "The Amendment also provides that Foundry may solicit, discuss, negotiate or furnish information in connection with acquisition inquiries or acquisition proposals during the period commencing on November 7, 2008, and ending on November 21, 2008. If, during that period, Foundry receives an acquisition proposal that constitutes or is reasonably likely to lead to a superior proposal, as defined in the Amended Merger Agreement, then Foundry may continue to discuss such acquisition proposal with the person or entity that made such acquisition proposal."

The companies can also terminate the deal, "under certain circumstances," including the failure of the merger to be consummated on or before Dec. 31. Foundry shareholders still have to approve it, too. 

If the deal is scrapped, Foundry is due a termination fee of either $125 million or $85 million, according to the filing.

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