Exhibit 2.1
TERMINATION AGREEMENT
AND RELEASE
THIS TERMINATION AGREEMENT AND RELEASE (this "Termination Agreement") is
made and entered into as of April 2, 2002 by and among SmartForce PLC, a public
limited liability company organized under the laws of the Republic of Ireland
("Parent"), Atlantic Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and Centra Software, Inc., a
Delaware corporation ("Company").
RECITALS
A. Parent, Merger Sub and Company have entered into an Agreement and Plan
of Merger and Reorganization dated as of January 16, 2002 (the "Merger
Agreement").
B. Section 7.1(a) of the Merger Agreement provides that it may be
terminated by mutual written consent duly authorized by the Board of Directors
of Parent and Company.
C. The Board of Directors of Parent and Company have determined that it is
in the best interests of Parent and Company and their respective stockholders to
terminate the Merger Agreement on the terms and conditions set forth in this
Termination Agreement.
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth herein, the parties hereto agree as follows:
1. Termination of Merger Agreement. Except as set forth in Section 3 below,
the Merger Agreement is hereby terminated pursuant to Section 7.1(a) thereof,
and such termination shall have the effect set forth in Section 7.2 thereof.
Without limiting the foregoing, each of Section 7.2, Section 5.3(a), Section 7.3
and Article VIII shall survive the termination of the Merger Agreement pursuant
to this Termination Agreement.
2. Termination of Collateral Documents. Each party hereto acknowledges and
agrees that the Company Voting Agreements and related proxies, the Parent Voting
Agreements and related proxies and the Affiliate Agreements, each as defined in
the Merger Agreement, are also hereby terminated.
3. Termination Fees.
(a) Company represents and warrants to Parent and Merger Sub that,
since the execution of the Merger Agreement, there has not occurred a
Trigger Event (as
defined in the Merger Agreement); provided, that it is understood that for
purposes of this Agreement the authorization by the Board of Directors of
the Company of the execution and delivery of this Termination Agreement
shall not be deemed to constitute a Trigger Event pursuant to Section
7.1(g)(i) of the Merger Agreement or otherwise.
(b) Notwithstanding any other provision of this Termination Agreement
or the Merger Agreement to the contrary, the parties agree that (i) a
failure by Company to advise Parent orally and in writing of any request
for information which Company reasonably believes would lead to an
Acquisition Proposal (as defined in the Merger Agreement) or of any
Acquisition Proposal, or any inquiry with respect to or which Company
reasonably should believe would lead to any Acquisition Proposal which
request for information, inquiry or Acquisition Proposal was made or
received after the execution of the Merger Agreement and prior to the
execution of this Termination Agreement shall constitute a material failure
to comply with Section 5.4 for purposes of Section 7.1(g)(iii) of the
Merger Agreement and thus constitute a "Trigger Event" for purposes of the
Merger Agreement and this Termination Agreement, and (ii) in the event that
a Trigger Event has occurred prior to the execution of this Termination
Agreement, this Termination Agreement shall be deemed to be a termination
of the Merger Agreement by Parent pursuant to Section 7.1(g) of the Merger
Agreement and Company shall be obligated to pay the Termination Fee (as
defined in the Merger Agreement) to Parent in accordance with Section
7.3(b) of the Merger Agreement.
(c) Notwithstanding any provision of this Termination Agreement or the
Merger Agreement to the contrary, the parties agree that, (i) in the event
that within three months after the date of this Termination Agreement
Company shall enter into a definitive agreement with respect to any Company
Acquisition (as defined in the Merger Agreement) (and such Company
Acquisition is consummated regardless of whether such consummation occurs
during such three month period) or any Company Acquisition shall be
consummated, upon such consummation, Company shall pay the Termination Fee
to Parent and (ii) in the event that the Company is not obligated to pay
the Termination Fee pursuant to clause (i) of this Section 3(c) and in the
event that more than three months and within six months after the date of
this Termination Agreement Company shall enter into a definitive agreement
with respect to any Company Acquisition (and such Company Acquisition is
consummated regardless of whether such consummation occurs during such
three month period) or any Company Acquisition shall be consummated, upon
such consummation, Company shall pay $2,500,000 in cash to Parent.
4. Standstill Agreement. Without the prior written consent of the other
party, for a period of 12 months after the date of this Termination Agreement,
neither party nor any person or entity that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control
with such party (each an "affiliate") will (a) acquire, offer to acquire, or
agree to acquire, directly or indirectly, by purchase, tender offer or
otherwise, any assets or voting securities or direct or indirect rights or
options to acquire any assets or voting securities of the other party, or
solicit or assist any other person so acquiring, offering to acquire or agreeing
to acquire such assets or securities, rights or options, (b) announce or
publicly propose any extraordinary
transaction involving the other party, or any voting securities or assets of the
other party; (c) make, or participate, directly or indirectly, in any
"solicitation" of "proxies" to vote (as such terms are used in the proxy rules
of the Securities and Exchange Commission), or seek to advise or influence any
person or entity with respect to the voting of, any voting securities of the
other party; (d) form, join or in any way participate in a "group" within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 with respect
to any voting securities of the other party; or (e) otherwise act, alone or in
concert with others, to seek to control the management, board of directors, or
policies of the other party. Each party agrees to notify the other party
promptly if it becomes aware of any act or proposal described in clauses (b)
though (e) of the preceding sentence by any other person.
5. Release.
(a) Each of the parties hereto on its behalf and on behalf of their
parents, affiliates, subsidiaries, segments or divisions, successors and
assigns, present and former shareholders, officers, directors, employees,
agents, representatives, attorneys and any persons acting by, through,
under or in concert with each of them or any of them hereby completely
releases and forever discharges the other parties hereto, their parents,
affiliates, subsidiaries, segments or divisions, successors and assigns,
present and former shareholders, officers, directors, employees, agents,
representatives and attorneys from any and all claims, rights, demands,
actions, obligations, liabilities and causes of action of any and every
kind, nature and character whatsoever, known or unknown, which such party
may now have or may in the future have, arising from the Merger Agreement,
including, without limitation, the termination thereof, and whether based
on tort, contract (express or implied), or any federal, state or local law,
statute or regulation (hereinafter the "Released Matters"); provided, that
(i) this Termination Agreement does not release or discharge the parties
hereto from their respective obligations under this Termination Agreement
or Section 7.2 (except as set forth in (ii) below), Section 5.3(a), Section
7.3 and Article VIII of the Merger Agreement and (ii) notwithstanding
Section 7.2 of the Merger Agreement, this Termination Agreement shall
release and discharge the parties hereto from any liability resulting from
fraud in connection with, or any willful breach of, the Merger Agreement.
(b) It is understood and agreed that, except as set forth therein, the
preceding paragraph is a full and final release covering all known as well
as unknown or unanticipated debts, claims or damages of the parties hereto
arising from the Merger Agreement, including, without limitation, the
termination thereof. Therefore, each of the parties hereto waives any and
all rights or benefits which it may now have, or in the future may have,
under the terms of Section 1542 of the California Civil Code which provides
as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
Each of the parties expressly waives and relinquishes any rights it may
have under Civil Code 1542 or any other statute or common law principle with a
similar effect. In connection with such waiver and relinquishment, the parties
hereto acknowledge that they or their attorneys or agents may hereafter discover
claims or facts in addition to or different from those which they now know or
believe to exist with respect to the Released Matters, but that it is their
intention hereby fully, finally and forever to settle and release all of the
Released Matters, except as set forth in the proviso to the preceding paragraph.
In furtherance of this intention, the releases herein given shall be and remain
in effect as full and complete mutual releases with regard to the Released
Matters notwithstanding the discovery or existence of any such additional or
different claim or fact.
6. Breach of Termination Agreement. In the event of any breach or default
of this Termination Agreement, the non-breaching party shall have all rights and
remedies provided by law and equity to enforce this Termination Agreement
including, without limitation, an action for damages and to obtain specific
performance of the terms of this settlement.
7. Authority to Execute Agreement. The parties hereto, by signature of
their respective undersigned representatives, warrant and represent that the
execution and delivery of this Termination Agreement has been authorized by all
necessary corporate action of such party.
8. Representation of Counsel. Each of the parties hereto acknowledge that
they have been represented by counsel of their choice and this Termination
Agreement has been executed with the consent and on the advice of such legal
counsel. Each of them further acknowledges that they and their counsel have had
an adequate opportunity to make whatever investigation or inquiry they deemed
necessary or desirable in connection with the subject matter of this Termination
Agreement prior to the execution hereof.
9. Publicity; Non-Disparagement Agreement. The parties have agreed on the
text of a joint press release announcing the termination of the Merger Agreement
and execution of this Termination Agreement (the "Press Release"). No party will
issue any press release or make any public announcement or statement relating to
the termination of the Merger Agreement or execution of this Termination
Agreement that is inconsistent with the Press Release or that disparages any
other party.
10. Miscellaneous.
(a) Governing Law. The internal laws of the State of Delaware
(irrespective of its choice of law principles) will govern the validity of
this Termination Agreement, the construction of its terms and the
interpretation and enforcement of the rights and duties of the parties
hereto.
(b) Assignment Binding Upon Successors and Assigns. Neither party
hereto may assign any of its rights or obligations hereunder without the
prior written consent of the other parties hereto. This Termination
Agreement will be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
(c) Severability. If any provision of this Termination Agreement, or
the application thereof, will for any reason and to any extent be invalid
or unenforceable, the remainder of this Termination Agreement and
application of such provision to other persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto.
The parties further agree to replace such void or unenforceable provision
of this Termination Agreement with a valid and enforceable provision that
will achieve, to the greatest extent possible, the economic, business and
other purposes of the void or unenforceable provision.
(d) Counterparts. This Termination Agreement may be executed in any
number of counterparts, each of which will be an original as regards any
party whose signature appears thereon and all of which together will
constitute one and the same instrument. This Termination Agreement will
become binding when one or more counterparts hereof, individually or taken
together, will bear the signatures of all the parties reflected hereon as
signatories.
(e) Amendment and Waivers. Any term or provision of this Termination
Agreement may be amended, and the observance of any term of this
Termination Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a writing
signed by the party to be bound thereby. The waiver by a party of any
breach hereof or default in the performance hereof will not be deemed to
constitute a waiver of any other default or any succeeding breach or
default.
(f) Attorneys' Fees. Should suit be brought to enforce or interpret
any part of this Termination Agreement, the prevailing party will be
entitled to recover, as an element of the costs of suit and not as damages,
reasonable attorneys' fees to be fixed by the court (including, without
limitation, costs, expenses and fees on any appeal). The prevailing party
will be entitled to recover its costs of suit, regardless of whether such
suit proceeds to final judgment.
(g) Construction of this Termination Agreement. This Termination
Agreement has been negotiated by the respective parties hereto and their
attorneys and the language hereof will not be construed for or against
either party. The titles and headings herein are for reference purposes
only and will not in any manner limit the construction of this Termination
Agreement which will be considered as a whole.
(h) Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and
agreements and to
give such further written assurances as may be reasonably requested by any
other party to evidence and reflect the transactions described herein and
contemplated hereby and to carry into effect the intents and purposes of
this Termination Agreement.
(i) Entire Agreement. This Termination Agreement constitutes the
entire understanding and agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior and contemporaneous
agreements or understandings, inducements or conditions, express or
implied, written or oral, between the parties with respect hereto except as
expressly set forth herein. The express terms hereof control and supersede
any course of performance or usage of the trade inconsistent with any of
the terms hereof.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, each of Parent, Merger Sub and Company has caused this
Termination Agreement to be executed on its behalf by its officers thereunto
duly authorized, all as of the date first above written.
SMARTFORCE PLC
By:
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman, President and CEO
ATLANTIC ACQUISITION CORP.
By:
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
CENTRA SOFTWARE, INC.
By:
------------------------
Name: Xxxx Xxxxxxxx
Title: Chairman and CEO
