Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made as of November 23, 2002
(this "Merger Agreement") by and among Patron Systems, Inc., a Delaware
corporation ("Parent"), TWC Acquisition, Inc., a Maryland corporation and wholly
owned subsidiary of Parent ("Mergerco"), and TrustWave Corp., a Maryland
corporation (the "Company") (Mergerco and the Company are hereinafter
collectively referred to as the "Constituent Corporations").
W I T N E S S E T H:
WHEREAS, the Company was incorporated by the filing of Articles of
Incorporation with the Secretary of State of the State of Maryland on November
9, 1995;
WHEREAS, Mergerco was incorporated by the filing of Articles of
Incorporation with the Secretary of State of the State of Maryland on October
28, 2002;
WHEREAS, the Company is a Maryland corporation having authorized
capital consisting of 25,000,000 shares of Common Stock, par value $0.01 (the
"Company Common Stock"), and immediately prior to the Effective Time (as
hereinafter defined) the only outstanding capital stock of the Company shall be
19,394,865 shares of Company Common Stock;
WHEREAS, Mergerco is a Maryland corporation having authorized capital
of 100 shares of common stock, par value $0.01 per share ("Mergerco Common
Stock"), all of which is issued and outstanding and owned by Parent;
WHEREAS, the respective Board of Directors of each Constituent
Corporation have approved this Merger Agreement and the merger of Mergerco with
and into the Company (the "Merger");
WHEREAS, the Constituent Corporations, Parent and certain shareholders
of the Company (the "Significant Shareholders") are concurrently entering into a
Supplemental Agreement (the "Supplemental Agreement") that, among other things,
sets forth certain covenants, agreements, representations and warranties with
respect to the Merger and the transactions contemplated by this Merger
Agreement;
WHEREAS, Parent and each of its stockholders (the "Parent
Stockholders") entered into that certain Share Exchange Agreement dated as of
September 27, 2002, as amended and restated on October 10, 2002 (the "Share
Exchange Agreement"), with Patron Holdings, Inc., a Nevada corporation, f/k/a
Combined Professional Services, Inc. ("Patron Holdings"), pursuant to the terms
of which all outstanding shares of common stock of Parent, par value $0.01 per
share (the "Parent Common Stock"), were exchanged for shares of common stock,
par value $0.001, of Patron Holdings, such that the Parent Stockholders, upon
the consummation of the transactions contemplated by the Share Exchange
Agreement, acquired approximately 85% of the outstanding capital stock of Patron
Holdings with Parent surviving as a wholly owned subsidiary of Patron Holdings;
WHEREAS, subsequent to the date hereof, but prior to the Closing Date,
Parent
and Patron Holdings intend to effect a merger whereby Patron Holdings will be
merged with and into Parent, with Parent continuing as the surviving corporation
incorporated under the laws of the State of Delaware;
WHEREAS, the vote required to approve the Merger and this Merger
Agreement is the affirmative vote of the holders of two-thirds of the
outstanding shares of Company Common Stock entitled to vote thereon; and
WHEREAS, certain capitalized terms are defined in the Supplemental
Agreement and shall have the same meaning when used in this Agreement unless
otherwise defined herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions hereof
and of the Supplemental Agreement, and in accordance with the Maryland General
Corporation Law ("MGCL") at the Effective Time (as hereinafter defined) Mergerco
shall be merged with and into the Company, which, as the corporation surviving
in the Merger (the "Surviving Corporation"), shall continue unaffected and
unimpaired by the Merger to exist under and be governed by the laws of the State
of Maryland. Upon the effectiveness of the Merger, the separate existence of
Mergerco shall cease except to the extent provided by law in the case of a
corporation after its merger into another corporation. Notwithstanding anything
herein to the contrary, upon the mutual written agreement of the parties, the
Company may be merged with and into Mergerco, with the Company as the
corporation surviving the Merger. In such event, the parties agree to execute an
appropriate amendment to this Agreement, in form and substance reasonably
satisfactory to Parent and the Company, in order to reflect such change,
including, among other things, appropriate provisions requiring the Company to
procure any material required consents.
1.2 Effective Time. As promptly as practicable after the satisfaction
or, if permissible, waiver of the conditions set forth in Article VI of the
Supplemental Agreement, the parties hereto shall cause the Merger to be
consummated by filing Articles of Merger with respect thereto with the Secretary
of State of the State of Maryland pursuant to Sections 3-107 and 3-109 of the
MGCL (the "Articles of Merger"). When used in this Merger Agreement, the term
"Effective Time" shall mean the date and time of receipt of the Articles of
Merger for filing by the Secretary of State of the State of Maryland unless a
delayed effective time is specified therein.
1.3 Effects of the Merger. The Merger shall have the effects set
forth in Section 3-114 of the MGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, except as otherwise
provided herein, all of the property, rights, privileges, powers and franchises
of Mergerco and the Company shall vest in the Surviving Corporation, and all
debts, liabilities and duties of Mergerco and the Company shall become the
debts, liabilities and duties of the Surviving Corporation. The Surviving
Corporation shall be a wholly owned subsidiary of Parent.
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1.4 Articles of Incorporation and By-laws of the Surviving
Corporation; Officers and Directors. The Articles of Incorporation of Mergerco
shall be the Articles of Incorporation of the Surviving Corporation until
thereafter changed or amended; the By-laws of the Company, as in effect
immediately prior to the Effective Time, shall continue in full force and effect
as the By-laws of the Surviving Corporation until thereafter changed or amended.
From and after the Effective Time, until their successors are duly elected or
appointed and qualified, the directors and the officers of the Surviving
Corporation shall be as follows:
DIRECTORS
Xxxxxxx X. Xxxxx - Chairman
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxxx
OFFICERS
Name Office
Xxxxxxx X. Xxxxx Chief Executive Officer
Xxxxxxx Xxxxxxx President - Products
Xxxxxx Xxxxxxxxx President
1.5 Effect on Stock. As of the Effective Time, by virtue of the
Merger and without any action on the part of any shareholder of either of the
Constituent Corporations:
(a) Each issued and outstanding share of Mergerco Common Stock shall
be converted into and become one fully paid and nonassessable share of common
stock, par value $0.01 per share, of the Surviving Corporation. Each certificate
of Mergerco evidencing ownership of any such shares of Mergerco Common Stock
shall continue to evidence ownership of the same number of shares of common
stock of the Surviving Corporation.
(b) All shares of Company Common Stock that are held in the treasury
of the Company or by a wholly owned Subsidiary of the Company shall be canceled
and no consideration shall be delivered in exchange therefor.
(c) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares canceled in
accordance with Section 1.5(b) and other than Dissenting Shares) shall be
converted into:
(i) the right to receive an amount equal to the Per Common Share
Closing Stock Consideration;
(ii) the right to receive an amount equal to the Per Common Share
Closing Cash Consideration;
(iii) the right to receive, on the six month anniversary of the
Closing Date, the Per Common Share Post-Closing Cash Consideration, to be
evidenced by a Post-Closing Note (as defined in the Supplemental
Agreement); and
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(iv) the right to receive, on the twelve month anniversary of the
Closing Date, if, and only if, (A) the Twelve Month Price of Parent Common
Stock is less than $12.00 per share and (B) such share of Company Common
Stock has not been sold, assigned, transferred, pledged or otherwise
conveyed subject to the Effective Time, the Per Common Share Contingent
Stock Consideration; provided, that, in no event shall Parent issue an
amount of Aggregate Contingent Consideration which exceeds the Maximum
Aggregate Contingent Consideration; provided, further, that, if a holder of
an Assumed Option exercises such option subsequent to the Effective Time
but prior to such twelve month anniversary, the resulting shares of Parent
Common Stock shall have the right to receive the Per Common Share
Contingent Stock Consideration. The following terms when used in this
Merger Agreement shall have the following respective meanings:
(A) "Aggregate Contingent Common Stock Consideration" means an amount
equal to the Aggregate Contingent Consideration less the Aggregate Contingent
Stock Option Consideration.
(B) "Aggregate Contingent Consideration" means an amount equal to
difference of (A) the quotient of (x) $132,000,000 (y) divided by the Twelve
Month Price less (B) 11,000,000.
(C) "Aggregate Contingent Stock Option Consideration" means an amount
equal to the Aggregate Contingent Consideration multiplied by the quotient of
the Closing Parent Stock Options divided by 11,000,000, rounded down to the
nearest whole number; provided, that, if any Assumed Option is exercised
subsequent to the Effective Time, for the purpose of calculating the Aggregate
Contingent Stock Option Consideration, the Aggregate Contingent Common Stock
Consideration and the right to receive the Per Common Share Contingent
Consideration, such exercised options shall be included within the definition of
Closing Parent Shares and excluded from the definition of Closing Parent Stock
Options.
(D) "Closing Cash Consideration" means $10,000,000 less (i) the
Company Bonus Payments and (ii) any fees and expenses in excess of $130,000 set
forth in the Company Legal Expense Report.
(E) "Closing Date Consideration" means consideration delivered on the
Closing Date pursuant to Section 1.5(c)(i) and Section 1.5(c)(ii).
(F) "Closing Parent Shares" means an amount equal to 11,000,000 less
the Closing Parent Stock Options.
(G) "Closing Parent Stock Options" means an amount equal to the
product of the total number of outstanding Company Stock Options immediately
prior to the Effective Time multiplied by the Option Exchange Ratio, rounded
down to the nearest whole number.
(H) "Contingent Consideration" means consideration, if any, delivered
pursuant to Section 1.5(c)(iv).
(I) "Contingent Option Exchange Ratio" means an amount equal to the
quotient of (i) the sum of 11,000,000 plus the Aggregate Contingent
Consideration (which shall
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not exceed the Maximum Aggregate Contingent Consideration) divided by (ii) the
sum of the total number of outstanding shares of Company Common Stock
immediately prior to the Effective Time and the total number of outstanding
Company Stock Options immediately prior to the Effective Time.
(J) "Maximum Aggregate Contingent Consideration" means an amount
equal to the quotient of (x) the Closing Parent Shares divided by the difference
of (y) one minus the quotient of (A) the Closing Parent Stock Options divided by
(B) 11,000,000.
(K) "Merger Consideration" means, collectively, the Closing Date
Consideration and the Post-Closing Consideration.
(L) "Per Common Share Closing Cash Consideration" means an amount
equal to the quotient of (A) the Closing Cash Consideration, divided by (B) the
total number of outstanding shares of Company Common Stock immediately prior to
the Effective Time.
(M) "Per Common Share Closing Stock Consideration" means an amount
equal to the quotient of the Closing Parent Shares divided by the total number
of outstanding shares of Company Common Stock immediately prior to the Effective
Time.
(N) "Per Common Share Contingent Stock Consideration" means an amount
equal to the Aggregate Contingent Common Stock Consideration divided by the
Closing Parent Shares.
(O) "Per Common Share Post-Closing Cash Consideration" means an
amount equal to the quotient of (A) $10,000,000, divided by (B) the total number
of outstanding shares of Company Common Stock immediately prior to the Effective
Time.
(P) "Post-Closing Consideration" means consideration delivered
pursuant to Section 1.5(c)(iii).
(Q) "Twelve Month Price" means the average of the highest bid and
lowest asked prices of Parent Common Stock in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated, or any
similar successor organization, averaged over a period of 21 days consisting of
the day that is the first anniversary of the Closing Date (or if not a business
day, the first business day thereafter) and the 20 consecutive business days
prior to such day.
(d) All shares of Company Common Stock (other than shares of Company
Common Stock to be canceled in accordance with Section 1.5(b)), when so
converted as provided in Section 1.5(c), shall no longer be outstanding and
shall automatically be canceled and retired and each holder of a certificate
theretofore representing any such shares shall cease to have any rights with
respect thereto, except the right to receive, upon the surrender of such
certificate in accordance with Section 1.6, the portion of the Merger
Consideration and the Contingent Consideration, if any, attributable to such
shares.
(e) Notwithstanding anything in this Merger Agreement to the
contrary, the Significant Shareholders, each of whom is a party to the
Supplemental Agreement, by virtue of their execution of the Supplemental
Agreement, have approved this Merger Agreement and the
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Merger and have waived any and all rights that they might otherwise have to
dissent from the Merger Agreement and to demand appraisal for their shares of
Company Common Stock in accordance with the MGCL.
(f) (i) Each of the stock options to purchase Company Common Stock
issued by the Company pursuant to the 2001 Stock Incentive Plan of the
Company, as approved by the Board of Directors of the Company (the "Company
Stock Plan"), and set forth on Schedule 3.3 to the Supplemental Agreement
(the "Company Stock Options"), which are outstanding as of the Effective
Time shall, whether or not then exercisable and vested, become fully
exercisable and vested immediately prior to the Effective Time.
(ii) Concurrent with the Effective Time, each Company Stock Option
which is outstanding immediately prior to the Effective Time shall by
virtue of the Merger, and without any further action on the part of any
holder thereof, be assumed by Parent and shall thereby be converted into an
option (an "Assumed Option") to purchase the number of shares of Parent
Common Stock determined by multiplying (A) the number of shares of Company
Common Stock subject to such Company Stock Option immediately prior to the
Effective Time by (B) the Option Exchange Ratio, at an exercise price per
share of Parent Common Stock equal to the exercise price per share of such
Company Stock Option immediately prior to the Effective Time divided by the
Option Exchange Ratio, rounded down to the nearest whole cent.
(iii) In the event that the Per Common Share Contingent Stock
Consideration is due pursuant to the requirements of Section 1.5(c)(iv),
the conversion of each Assumed Option (which remains outstanding and has
not been exercised prior to the twelve month anniversary hereof) shall,
without any further action on the part of any holder thereof, be
re-calculated as follows: the original Company Stock Option (prior to the
conversion thereof pursuant to Section 1.5(f)(ii)) shall be converted to
purchase the number of shares of Parent Common Stock determined by
multiplying (A) the number of shares of Company Common Stock subject to
such Company Stock Option immediately prior to the Effective Time by (B)
the Contingent Option Exchange Ratio, at an exercise price per share of
Parent Common Stock equal to the exercise price per share of such Company
Stock Option immediately prior to the Effective Time divided by the
Contingent Option Exchange Ratio, rounded down to the nearest whole cent.
(iv) Except for the foregoing adjustments and the acceleration of
vesting of the Company Stock Options as described in Section 1.5(f)(i), all
the terms and conditions in effect for each Assumed Option immediately
prior to the Effective Time shall continue in effect following the
assumption of such option in accordance with this Agreement. If either of
the foregoing calculations set forth in Sections 1.5(f)(ii) or 1.5(f)(iii)
results in an Assumed Option being exercisable for a fraction of a share of
Parent Common Stock, then the number of shares of Parent Common Stock
subject to such Assumed Option shall be rounded up to the nearest whole
number of shares.
(v) The adjustment provided herein with respect to any Company Stock
Options which are "incentive stock options" (as defined in Section 422 of
the Code), if any, shall be and is intended to be effected in a manner
which is consistent with
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Section 424(a) of the Code and shall be effected in a manner that will
entitle the Assumed Option to continue to be treated as an "incentive stock
option."
(g) Any issued and outstanding shares of Company Common Stock held by
a Person (a "Dissenting Shareholder") who properly exercises such Person's
dissenters' rights under the MGCL ("Dissenting Shares") shall not be converted
as described in Section 1.5(c), but rather shall be converted into the right to
receive such consideration as may be determined to be due to such Dissenting
Shareholder pursuant to the MGCL. Subject to the foregoing, if, after the
Effective Time, such Dissenting Shareholder withdraws his demand for payment or
fails to perfect or otherwise loses his right of payment, in any case pursuant
to the MGCL, the Dissenting Shares of such Dissenting Shareholder shall be
deemed to be converted as of the Effective Time into the right to receive the
amount to which such Dissenting Shareholder would otherwise have been entitled
to pursuant to Section 1.5(c). The Company shall give Parent prompt notice of
any demands for payment received by the Company. The Company shall not, without
the prior written consent of Parent, make any payment with respect to, or settle
or offer to settle, any such demands, and, prior to the Effective Time, Parent
shall have the right to participate in all negotiations and proceedings with
respect to such demands.
1.6 Parent to Make Certificates Available; Dividends.
(a) Parent shall make available to Mergerco, on the date of the
Effective Time, the certificates representing the Closing Patron Shares. Upon
surrender by a holder of certificates representing shares of Company Common
Stock ("Certificates") held by such holder to the Surviving Corporation,
together with properly completed and executed assignments separate from
certificate, the Surviving Corporation shall promptly deliver to such holder
that portion of the Merger Consideration that such holder shall be entitled to
under Section 1.5(c). Parent shall make available to Mergerco, the certificates
representing the Aggregate Contingent Common Stock Consideration, if any. The
Surviving Corporation shall promptly deliver to each holder the Per Common Share
Contingent Stock Consideration that such holder shall be entitled to under
Section 1.5(c)(iv), if any.
(b) If the Merger Consideration or any Contingent Consideration (or
any portion thereof) is to be delivered to a person other than the person in
whose name the Certificates surrendered in exchange therefor are registered, it
shall be a condition to the payment of the Merger Consideration or any such
Contingent Consideration that the Certificates so surrendered shall be properly
endorsed or accompanied by appropriate stock powers and otherwise in proper form
for transfer, that such transfer otherwise be proper and that the person
requesting such transfer pay to the Surviving Corporation any transfer or other
taxes payable by reason of the foregoing or establish to the satisfaction of the
Surviving Corporation that such taxes have been paid or are not required to be
paid. For purposes of this Merger Agreement, the term "person" means an
individual, a corporation, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision or any
agency or instrumentality thereof.
(c) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed, the Surviving Corporation will
deliver or cause to be delivered in exchange for such
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lost, stolen or destroyed Certificate, with respect to each share of the Company
Common Stock represented thereby, certificates for any portion of the Merger
Consideration and Contingent Consideration, if any, deliverable in respect
thereof as determined in accordance with this Article I. No bond shall be
required in connection therewith.
(d) No dividends or other distributions, if any, that are declared on
or after the Effective Time on Parent Common Stock or are payable to the holders
of record thereof on or after the Effective Time will be paid to persons
entitled by reason of the Merger to receive certificates representing shares of
Parent Common Stock, nor shall such persons be entitled to vote such shares of
Parent Common Stock, until such persons surrender their Certificates, as
provided in this Article I. Subject to the effect of applicable law, there shall
be paid to the record holder of the certificates representing such shares of
Parent Common Stock (i) at the time of such surrender or as promptly as
practicable thereafter, the amount of any dividends or other distributions
theretofore paid with respect to whole shares of Parent Common Stock and having
a record date on or after the Effective Time and a payment date prior to such
surrender and (ii) at the appropriate payment date, the amount of dividends or
other distributions, if any, payable with respect to whole shares of Parent
Common Stock and having a record date on or after the Effective Time but prior
to surrender and a payment date subsequent to surrender. In no event shall the
person entitled to receive any such dividends or other distributions be entitled
to receive interest on such dividends or other distributions.
1.7 No Fractional Securities. No certificates representing fractional
shares of Parent Common Stock shall be issued upon the surrender for exchange of
Certificates pursuant to this Article I or upon the payment of the Contingent
Consideration, if any, and no Parent dividend or other distribution, stock split
or interest shall relate to any fractional security, and such fractional
interests shall not entitle the owner thereof to vote or to any rights of a
security holder of Parent. In lieu of any fractional share, each holder of
Parent Common Stock who would otherwise have been entitled to a fraction of a
share of Parent Common Stock upon surrender of Certificates for exchange
pursuant to this Article I or upon the payment of the Contingent Consideration,
if any, will be paid an amount in cash (without interest and rounded to the
nearest whole cent) determined by multiplying $3.65 by the fractional share
interest to which such holder would otherwise be entitled. As soon as
practicable after the determination of the amount of cash to be paid to the
Shareholders in lieu of any fractional interests, Parent shall make such cash
available to the Surviving Corporation, which in turn shall make available in
accordance with this Merger Agreement such amounts to such Shareholders.
1.8 Return of the Merger Consideration or Contingent Consideration.
Any portion of (i) the Merger Consideration which remains undistributed to the
Shareholders for six months after the date hereof or (ii) Contingent
Consideration, if any, which remains undistributed to the Shareholders for
eighteen months after the date hereof, shall, to the extent permitted by
applicable law, be delivered to Parent, upon demand by Parent, and any
Shareholder who has not theretofore complied with this Article I shall
thereafter look only to Parent for payment of, and Parent shall pay any such
Shareholder's valid claim for, any portion of the Merger Consideration or
Contingent Consideration which such Shareholder is otherwise entitled to
receive. Notwithstanding the foregoing, neither Parent nor any other party shall
be liable to any Shareholder for any cash delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
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1.9 No Further Ownership Rights in Company Common Stock. All Merger
Consideration and Contingent Consideration, if any, paid or payable upon the
surrender for exchange of Certificates in accordance with the terms hereof shall
be deemed to have been paid or be payable in full satisfaction of all rights of
ownership, including voting rights, pertaining to the shares of Company Common
Stock.
1.10 Closing of Company Transfer Books. At the Effective Time, the
stock transfer books of the Company shall be closed and no transfer of shares of
Company Common Stock shall thereafter be made. If, after the Effective Time,
Certificates are presented to the Surviving Corporation, they shall be canceled
and exchanged as provided in this Article I.
1.11 Further Assurances. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments or assurances or any other acts or things are necessary,
desirable or proper (a) to vest, perfect or confirm, of record or otherwise, in
the Surviving Corporation, its right, title or interest in, to or under any of
the rights, privileges, powers, franchises, properties or assets of either of
the Constituent Corporations, or (b) otherwise to carry out the purposes of this
Merger Agreement, the Surviving Corporation and its proper officers and
directors or their designees shall be authorized to execute and deliver, in the
name and on behalf of either of the Constituent Corporations, all such deeds,
bills of sale, assignments and assurances and do, in the name and on behalf of
each of the Constituent Corporations, all such other acts and things necessary,
desirable or proper to vest, perfect or confirm its right, title or interest in,
to or under any of the rights, privileges, powers, franchises, properties or
assets of such Constituent Corporation and otherwise to carry out the purposes
of this Merger Agreement.
ARTICLE II
CONDITIONS AND TERMINATION
2.1 Conditions. The obligations of each Constituent Corporation
under this Merger Agreement are subject to the condition that, prior to the
Effective Time, each of the conditions to its obligations contained in Article
VI of the Supplemental Agreement shall have been satisfied or waived.
2.2 Waiver. The Board of Directors or a duly authorized officer of a
Constituent Corporation may, on behalf of such corporation, waive or extend the
time for performance of any condition to its obligations under the Supplemental
Agreement.
2.3 Termination. Notwithstanding the approval of this Merger
Agreement by the Board of Directors, and its adoption by the shareholders of
each Constituent Corporation, this Merger Agreement may be terminated and the
Merger abandoned prior to the Effective Time by:
(a) The mutual consent of the Constituent Corporations;
(b) Either Constituent Corporation if the Merger has not become
effective by April 30, 2003 (or such later date as shall be mutually agreed to
in writing by the parties hereto);
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provided, that, the party seeking termination is not in default or breach of
this Merger Agreement or the Supplemental Agreement;
(c) The Company in the event of a material breach by Parent of any of
its representations, warranties or covenants contained in the Supplemental
Agreement, which breach is not cured by Parent within 10 days after written
notice of such breach;
(d) By Parent or Mergerco in the event of a material breach by the
Company or the Significant Shareholders of any of their respective
representations, warranties and covenants contained in the Supplemental
Agreement, which breach would deprive Parent of the economic benefits of the
transactions contemplated hereby or thereby (provided, that, Parent's right to
indemnification by the Significant Shareholders pursuant to Section 8.1 of the
Supplemental Agreement for any such breach which does not deprive Parent of the
economic benefits of the transactions contemplated hereby or thereby shall
survive the Closing) and which breach is not cured by the Company or the
Significant Shareholders within 10 days after written notice of such breach; or
(e) Either the Company, on the one hand, or Parent or Mergerco, on
the other hand, if the Supplemental Agreement is terminated in accordance with
its terms.
ARTICLE III
GENERAL
3.1 Partial Invalidity. Wherever possible each provision of this
Merger Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Merger Agreement shall
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Merger Agreement.
3.2 Successors and Assigns. This Merger Agreement shall not be
assignable prior to the Effective Time by either Constituent Corporation without
the written consent of the other, but, if assigned with such consent, shall
inure to the benefit of and be binding upon the successor or assign of the
assigning Constituent Corporation before the Effective Time and thereafter upon
the Surviving Corporation.
3.3 Amendment. This Merger Agreement shall not be amended except by
an instrument in writing signed on behalf of each of the parties hereto.
3.4 Interpretation. This Merger Agreement shall be governed by the
laws of the State of Maryland and may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. The headings of the several articles and
sections herein are for convenience of reference only and shall not be a part of
or affect the meaning or interpretation of this Merger Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Merger Agreement
to be executed by their respective officers thereunto duly authorized, and their
respective seals to be affixed and attested, all as of the date first above
written.
TRUSTWAVE CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President / CEO
PATRON SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: CEO
TWC ACQUISITION, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: President
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