AGREEMENT AND PLAN OF MERGER DATED AS OF SEPTEMBER 20, 2006 AMONG INNOVATION TECHNOLOGY GROUP, INC., ITG ACQUISITION, INC. AND VITRIA TECHNOLOGY, INC.
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
DATED AS OF SEPTEMBER 20, 2006
AMONG
INNOVATION TECHNOLOGY GROUP, INC.,
ITG ACQUISITION, INC.
AND
VITRIA TECHNOLOGY, INC.
AGREEMENT
AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of
September 20, 2006 (this “Agreement”), is
among INNOVATION TECHNOLOGY GROUP, INC., a Delaware corporation
(“Parent”), ITG ACQUISITION, INC., a Delaware
corporation and a direct, wholly owned Subsidiary of Parent
(“Merger Sub”), and VITRIA TECHNOLOGY, INC., a
Delaware corporation (the “Company”). Certain
terms used in this Agreement are used as defined in
Section 8.13.
ARTICLE 1
Section 1.1 The
Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with
the General Corporation Law of the State of Delaware (the
“DGCL”), at the Effective Time, Merger Sub
shall be merged with and into the Company, and the separate
corporate existence of Merger Sub shall thereupon cease, and the
Company shall be the surviving corporation in the Merger (the
“Surviving Corporation”).
Section 1.3 Effective
Time. Subject to the provisions of this
Agreement, on the Closing Date the parties shall file with the
Secretary of State of the State of Delaware a certificate of
merger (the “Certificate of Merger”), executed
in accordance with the relevant provisions of the DGCL. The
Merger shall become effective upon the filing of the Certificate
of Merger with the Secretary of State of the State of Delaware
or at such later time as is agreed to by the parties hereto and
specified in the Certificate of Merger (the time at which the
Merger becomes effective is herein referred to as the
“Effective Time”).
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(a) The certificate of incorporation of the Company, as in
effect immediately prior to the Effective Time, shall be amended
in the Merger to be in the form of Exhibit A hereto and, as
so amended, such certificate of incorporation shall be the
certificate of incorporation of the Surviving Corporation until
thereafter amended as provided therein or by applicable Law.
(b) Parent shall take all necessary actions to cause the
bylaws of Merger Sub, in the form attached as Exhibit B
hereto, to be the bylaws of the Surviving Corporation until
thereafter amended as provided therein or by applicable Law.
ARTICLE 2
Effect of
the Merger on the Capital Stock of the Constituent
Corporations;
Section 2.1 Effect
on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of the
holder of any shares of Company Capital Stock or any shares of
capital stock of Merger Sub:
(a) Capital Stock of Merger Sub. Each issued and
outstanding share of capital stock of Merger Sub shall be
converted into and become one validly issued, fully paid and
nonassessable share of common stock, par value $0.001 per share,
of the Surviving Corporation;
(b) Cancellation of Treasury Stock and Parent-Owned Stock.
Any shares of Company Capital Stock that are owned by the
Company as treasury stock, and any shares of Company Capital
Stock owned by Parent, Merger Sub, any other wholly owned
Subsidiary of Parent, or held by those persons or entities
listed in Schedule A attached hereto, shall be
automatically canceled and shall cease to exist and no
consideration shall be delivered in exchange therefor; and
(c) Conversion of Company Common Stock. Each issued and
outstanding share of Company Common Stock (other than shares to
be canceled in accordance with Section 2.1(b) and Appraisal
Shares) shall be converted into the right to receive $2.75 in
cash, without interest (the “Per Share
Amount”). As used herein, the term “Merger
Consideration” means the cash payable to former
stockholders of the Company pursuant to this Section 2.1(c).
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Section 2.2 Appraisal
Rights. Notwithstanding anything in this
Agreement to the contrary, shares of Company Common Stock issued
and outstanding immediately prior to the Effective Time that are
held by any holder who is entitled to demand and properly
demands appraisal of such shares pursuant to, and who complies
in all respects with, the provisions of Section 262 of the
DGCL (“Section 262”) shall not be
converted into the right to receive the Merger Consideration as
provided in Section 2.1(c), but instead such holder shall
be entitled to payment of the fair value of such shares (the
“Appraisal Shares”) in accordance with the
provisions of Section 262. At the Effective Time, all
Appraisal Shares shall no longer be outstanding and shall
automatically be canceled and shall cease to exist, and each
holder of Appraisal Shares shall cease to have any rights with
respect thereto, except the right to receive the fair value of
such Appraisal Shares in accordance with the provisions of
Section 262. Notwithstanding the foregoing, if any such
holder shall fail to perfect or otherwise shall waive, withdraw
or lose the right to appraisal under Section 262 or a court
of competent jurisdiction shall determine that such holder is
not entitled to the relief provided by Section 262, then
the right of such holder to be paid the fair value of such
holder’s Appraisal Shares under Section 262 shall
cease and each of such Appraisal Shares shall be deemed to have
been converted at the Effective Time into, and shall have
become, the right to receive the Per Share Amount as provided in
Section 2.1(c). The Company shall (i) deliver prompt
notice to Parent of any demands for appraisal of any shares of
Company Common Stock, and (ii) give Parent the opportunity
to participate in all negotiations and proceedings with respect
to any such demand. Prior to the Effective Time, the Company
shall not, without the prior written consent of Parent, such
consent not to be unreasonably withheld or delayed, make any
payment with respect to, or settle or offer to settle, any such
demands, or agree to do any of the foregoing.
Section 2.3 Surrender
of Certificates.
(a) Paying Agent. Prior to the
Effective Time, Parent shall designate a bank or trust company
reasonably acceptable to the Company to act as agent (the
“Paying Agent”) for payment of the Merger
Consideration upon surrender of the certificates that
immediately prior to the Effective Time represented shares of
Company Capital Stock (each such certificate, a
“Certificate”). Immediately following the
Effective Time, Parent shall deposit, or cause to be deposited,
with the Paying Agent cash sufficient to pay the aggregate
Merger Consideration payable pursuant to Section 2.1(c)
upon surrender of Certificates representing outstanding shares
of Company Capital Stock (it being understood that Parent may
cause the Surviving Corporation to deposit a portion of such
cash amount with the Paying Agent, provided, however,
that Parent shall not cause the Surviving Corporation to
deposit with the Paying Agent any amount of cash which, after
such deposit, would cause the Surviving Corporation: (i) to
be unable to pay its debts (including trade debts) as they
mature; (ii) to have the fair value of the Surviving
Corporation’s liabilities exceed the fair value of its
assets as a going concern; or (iii) to be left with
unreasonably small capital). Such funds provided to the Paying
Agent are referred to herein as the “Payment
Fund.”
(b) Payment Procedures. Promptly
after the Effective Time, the Paying Agent shall mail to each
holder of record of a Certificate: (i) a letter of
transmittal (which shall specify that delivery of the
Certificates shall be effected, and risk of loss and title to
the Certificates shall pass, only upon delivery of the
Certificates to the Paying Agent); and (ii) instructions
for use in effecting the surrender of the Certificates in
exchange for the right to receive the Per Share Amount with
respect to each share of Company Common Stock evidenced by such
Certificate. Upon surrender of a Certificate for cancellation to
the Paying Agent, together with such letter of transmittal, duly
completed and validly executed in accordance with the
instructions (and such other customary documents as may
reasonably be required by the Paying Agent), the holder of such
Certificate shall be entitled to receive in exchange therefor
the Per Share Amount with respect to each share of Company
Common Stock evidenced by such Certificate, and the Certificate
so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of shares of Company Capital Stock that is
not registered in the transfer records of the Company, the
proper amount of cash may be paid in exchange therefor to a
Person other than the Person in whose name the Certificate so
surrendered is registered if such Certificate shall be properly
endorsed or shall otherwise be in proper form for transfer and
the Person requesting such payment shall pay any transfer and
other Taxes required by reason of the payment to a Person other
than the registered holder of such Certificate or establish to
the reasonable satisfaction of the Surviving Corporation that
such Tax either has been paid or is not applicable. Until
surrendered as contemplated by this Section 2.3(b), each
Certificate shall be deemed at any time after the Effective Time
to represent only the right to receive upon such surrender the
Per Share Amount with respect to each share of Company Common
Stock
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evidenced by such Certificate. No interest will be paid or will
accrue on the Merger Consideration payable upon surrender of any
Certificate.
(c) Transfer Books; No Further Ownership Rights in
Company Stock. At the Effective Time:
(i) all shares of Company Capital Stock outstanding
immediately prior to the Effective Time shall automatically be
canceled and retired and shall cease to exist, and all holders
of Certificates representing shares of Company Capital Stock
that were outstanding immediately prior to the Effective Time
shall cease to have any rights as stockholders of the Company,
except the right to receive the Per Share Amount with respect to
each share of Company Common Stock evidenced by such Certificate
upon surrender thereof in accordance with Section 2.3(b);
and (ii) the stock transfer books of the Company shall be
closed and there shall be no further registration of transfers
on the stock transfer books of the Surviving Corporation of the
shares of Company Capital Stock that were outstanding
immediately prior to the Effective Time. All cash paid upon the
surrender of Certificates in accordance with the terms of this
Article 2 shall be deemed to have been paid in full
satisfaction of all rights pertaining to the shares of Company
Capital Stock previously represented by such Certificates.
Subject to Section 2.3(e), if, at any time after the
Effective Time, Certificates are presented to the Surviving
Corporation or the Paying Agent for any reason, they shall be
canceled and exchanged as provided in this Article 2.
(d) Lost, Stolen or Destroyed
Certificates. If 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 and, if required by Parent, the posting by
such Person of a bond, in such reasonable amount as Parent may
direct, as indemnity against any claim that may be made against
it with respect to such Certificate, the Paying Agent will pay
the Per Share Amount to such Person in exchange for each share
of Company Common Stock evidenced by such lost, stolen or
destroyed Certificate.
(e) Termination of Fund. Any
portion of the Payment Fund (including the proceeds of any
investments thereof) that remains undistributed to the former
holders of the Certificates one year after the Effective Time
shall be delivered by the Paying Agent to the Surviving
Corporation upon demand. Any former holders of Certificates who
have not theretofore complied with this Article 2 shall
thereafter look only to the Surviving Corporation for payment of
the Merger Consideration payable with respect thereto.
(f) No Liability. Notwithstanding
any provision of this Agreement to the contrary, none of Parent,
the Surviving Corporation or the Paying Agent shall be liable to
any Person for any amount properly paid from the Payment Fund or
delivered to a public official pursuant to any applicable
abandoned property, escheat or similar Law.
(g) Investment of Payment
Fund. Parent may cause the Paying Agent to
invest the Payment Fund in a money market fund registered under
the Investment Company Act of 1940, the principal of which is
invested solely in obligations issued or guaranteed by the
United States Government and repurchase agreements in respect of
such obligations. Any interest and other income resulting from
any such investment shall be the property of, and shall be paid
promptly to, Parent.
Section 2.4 Company
Stock Options; ESPP.
(a) At the Effective Time, Parent shall not assume any
option granted pursuant to a Company Stock Plan that is
outstanding immediately prior to the Effective Time (whether or
not then vested or exercisable) and that represents the right to
acquire shares of Company Common Stock (each, an
“Option”) and shall not substitute any similar
option or right for any such Option. All outstanding Options
that have not been exercised by the holders thereof at or prior
to the Effective Time shall become fully vested and shall
terminate if not exercised prior to the Effective Time. Prior to
the Effective Time, the Company shall take all actions necessary
to terminate the Company Stock Plans, such termination to be
effective at or before the Effective Time. At the Effective
Time, Eligible Options (as hereinafter defined) shall be
converted into the right to receive a cash amount equal to the
Option Consideration (as hereinafter defined) for each share of
Company Common Stock then subject to the Eligible Option (it
being understood that (i) with respect to an Eligible
Option held by a Person whose employment by the Company or its
Subsidiaries was terminated prior to the Effective Time, Option
Consideration shall only be paid with respect to the portion of
such Eligible Option that was vested as of the time such
Person’s employment relationship with the Company or its
Subsidiaries terminated and the post-termination exercise period
applicable to such Eligible
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Options has not expired as set forth in the documentation
evidencing such Eligible Option and (ii) with respect to
Eligible Options which by the terms of the grant documents
relating thereto, specifically provide for less acceleration
than is provided for under the terms of the Company Stock Plan
pursuant to which such Eligible Option was granted, the Option
Consideration shall be paid only with respect to the portion of
such Eligible Option which vests pursuant to the terms of such
grant documents). Prior to the Effective Time, the Company shall
deposit in a bank account an amount of cash equal to the sum of
the aggregate Option Consideration for each Eligible Option then
outstanding (subject to any applicable withholding tax),
together with instructions that such cash be promptly
distributed following the Effective Time to the holders of such
Eligible Options in accordance with this Section 2.4(a).
For purposes of this Agreement, “Option
Consideration” means, with respect to any share of
Company Common Stock issuable under a particular Eligible
Option, an amount equal to the excess, if any, of: (1) the
Per Share Amount; over (2) the exercise price payable in
respect of such share of Company Common Stock issuable under
such Eligible Option. For purposes of this Agreement,
“Eligible Option” means an Option with an
exercise price per share of less than the Per Share Amount that
has not been exercised prior to the Effective Time.
(b) The rights of participants in the ESPP with respect to
any offering period underway immediately prior to the Effective
Time under the ESPP shall be determined by treating the last
business day prior to the Effective Time as the last day of such
offering period and by making such other pro-rata adjustments as
may be necessary to reflect the shortened offering period but
otherwise treating such shortened offering period as a fully
effective and completed offering period for all purposes under
the ESPP. No offering period shall commence on or after the date
of this Agreement. Prior to the Effective Time, the Company
shall take all actions (including the termination of the ESPP
effective as of the Effective Time and, if appropriate, amending
the terms of the ESPP) that are necessary to give effect to the
limitations and transactions contemplated by this
Section 2.4(b).
(c) The Company and Parent shall take such steps as may be
reasonably requested by any party hereto to cause dispositions
of Company equity securities, Options, Rights and Stock Awards
pursuant to the transactions contemplated by this Agreement by
each individual who is a director or officer of the Company to
be exempt under
Rule 16b-3
promulgated under the Exchange Act in accordance with that
certain No-Action Letter dated January 12, 1999 issued by
the Securities and Exchange Commission (the
“SEC”) regarding such matters.
(d) At the Effective Time, as a result of the Merger, all
shares of Company Common Stock outstanding immediately prior to
the Effective Time that are unvested or are subject to a
repurchase option, risk of forfeiture or other condition under
any Company Stock Plan, applicable restricted stock purchase
agreement or other similar agreement with the Company
(“Restricted Shares”) shall be cancelled and
substituted with a right to receive future cash payments
(“Future Cash Payments”) which shall be equal,
on a per share basis, to the Per Share Amount. Future Cash
Payments shall be payable pursuant to the same vesting schedule
and terms as were applicable to such Restricted Shares
immediately prior to the Effective Time and subject to any
repurchase option, risk of forfeiture or other condition under
any Company Stock Plan, applicable restricted stock purchase
agreement or other similar agreement with the Company. The
vesting of Restricted Shares shall not be accelerated pursuant
to the Company’s 1999 Equity Incentive Plan solely as a
result of the Merger, and such vesting shall only be subject to
acceleration to the extent that such acceleration is expressly
required by the applicable restricted stock purchase agreement
or other similar agreement with the Company.
(e) Each of Parent, Merger Sub and the Company agree that
for purposes of the Company Stock Plans, Parent, Merger Sub and
the Surviving Corporation have refused to assume the rights
outstanding under such plans or substitute similar rights
therefore with respect to Options, and have substituted similar
rights with respect to Restricted Shares.
Section 2.5 Withholding
Taxes. Parent, the Surviving Corporation and
the Paying Agent shall be entitled to deduct and withhold from
the Merger Consideration otherwise payable to a former holder of
shares of Company Capital Stock or Options pursuant to this
Agreement such amounts as may be required to be deducted or
withheld with respect to the making of such payment under the
Code, or under any applicable provision of state, local or
foreign Law. To the extent that amounts are so deducted and
withheld, such amounts shall be treated for all purposes under
this Agreement as having been paid to the Person in respect of
which such deduction and withholding was made.
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Section 2.6 Adjustments. If
during the period from the date of this Agreement through the
Effective Time, any change in the outstanding shares of Company
Capital Stock or securities convertible or exchangeable into or
exercisable for shares of Company Capital Stock, shall occur by
reason of any reclassification, recapitalization, stock split or
combination, exchange or readjustment of shares of Company
Capital Stock, or any similar transaction, or any stock dividend
thereon with a record date during such period, the Per Share
Amount shall be appropriately adjusted to reflect such change.
ARTICLE 3
Except as set forth in the disclosure schedule (each section of
which qualifies the correspondingly numbered section of this
Agreement to the extent specified therein and such other
representations and warranties to the extent the relevance of a
matter in such section of the disclosure schedule to the
information called for by such other representation and warranty
is reasonably apparent) delivered by the Company to Parent
simultaneously with the execution of this Agreement (the
“Company Disclosure Schedule”), the Company
represents and warrants to Parent and Merger Sub as follows:
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or its Subsidiaries to take any action referred to in
Section 5.2 due to Parent’s unreasonable withholding
of consent or delaying its consent; and (J) any effect,
change, event, occurrence or circumstance that arises out of or
results from any of the matters set forth in Section 3.1 of
the Disclosure Schedule.
(a) The authorized capital stock of the Company consists of
150,000,000 shares of Company Common Stock and
5,000,000 shares of Company Preferred Stock. At the open of
business on September 19, 2006:
(i) 34,260,353 shares of Company Common Stock were
issued and outstanding (123,900 of which were held by the
Company in its treasury); (ii) 15,358,724 shares of
Company Common Stock were reserved for issuance under the Vitria
Technology, Inc. 1995 Equity Incentive Plan (which was amended
and restated as the Vitria Technology, Inc. Amended and Restated
1999 Equity Incentive Plan), 1998 Executive Incentive Plan and
the Amended and Restated 1999 Equity Incentive Plan (of which
4,984,147 shares of Company Common Stock were subject to
outstanding options granted thereunder and 2,100,262 shares
of Company Common Stock awarded thereunder that were unvested or
subject to a repurchase option, risk of forfeiture or other
similar condition in favor of the Company);
(iii) 3,849,994 shares of Company Common Stock were
reserved for issuance under the ESPP; and (iv) no shares of
Company Preferred Stock were issued and outstanding. All
outstanding shares of Company Capital Stock have been duly
authorized and validly issued and are fully paid, nonassessable
and free of preemptive rights. Section 3.2(a) of the
Company Disclosure Schedule sets forth a list, as of the open of
business on September 19, 2006, of all outstanding options
to purchase shares of Company Common Stock, and all awards of
Company Common Stock that are subject to a repurchase option,
risk of forfeiture or other similar condition in favor of the
Company, granted under the Vitria Technology, Inc. Amended and
Restated 1999 Equity Incentive Plan and the Vitria Technology,
Inc. 1998 Executive Incentive Plan, and, for each such option
and stock award: (A) the number of shares of Company Common
Stock subject thereto; (B) the date of grant; (C) the
expiration date (if applicable); (D) the exercise or
purchase price thereof; (E) the name of the holder thereof;
(F) the number of options or shares that are vested; and
(G) any provision for the acceleration of vesting. Except
as set forth above in this Section 3.2(a), as of the date
of this Agreement, there are not any shares of Company Capital
Stock issued and outstanding or any subscriptions, options,
warrants, calls, convertible or exchangeable securities, rights,
commitments or agreements of any character providing for the
issuance of any shares of Company Capital Stock.
(a) The Company has all necessary corporate power and
authority to execute and deliver this Agreement and, subject to
obtaining the Company Stockholder Approval, to perform its
obligations hereunder and to consummate the Transactions. The
execution, delivery and performance by the Company of this
Agreement, and the consummation by it of the Transactions, have
been duly authorized and approved by the Board of Directors (as
hereinafter defined), and except for obtaining the Company
Stockholder Approval for the adoption of this Agreement, no
other corporate action on the part of the Company is necessary
to authorize the execution, delivery and performance by the
Company of this Agreement and the consummation by it of the
Transactions. This Agreement has been duly executed and
delivered by the Company and, assuming due authorization,
execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except that such enforceability: (i) may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general application
affecting or relating to the enforcement of creditors’
rights generally; and (ii) is subject to general principles
of equity, whether considered in a proceeding at law or in
equity (collectively, the “Bankruptcy and Equity
Exception”).
(b) The Board of Directors, at a meeting duly called and
held, acting on the recommendation of the Strategic Committee
(as hereinafter defined), duly adopted resolutions
(i) approving, adopting and declaring advisable this
Agreement, the Merger and the transactions contemplated hereby,
(ii) determining that the terms of this Agreement and the
Merger are fair to and in the best interests of the Company and
the Public Stockholders (as hereinafter defined) and
(iii) recommending that the Company’s stockholders
adopt this Agreement (such recommendation being referred as the
“Company Board Recommendation”).
(c) Neither the execution and delivery of this Agreement by
the Company nor the consummation by the Company of the
Transactions, nor compliance by the Company with any of the
terms or provisions hereof, will in any material respect:
(i) conflict with or violate any provision of the
Company’s certificate of incorporation and
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bylaws (the “Company Charter Documents”) or any
of the certificates of incorporation and bylaws (or comparable
organizational documents) of each of the Company’s
Subsidiaries (the “Subsidiary Documents”); or
(ii) assuming that the authorizations, consents and
approvals referred to in Section 3.4 and the Company
Stockholder Approval are obtained and the filings referred to in
Section 3.4 are made: (A) violate any Law, judgment,
writ or injunction of any Governmental Authority applicable to
the Company or any of its Subsidiaries or any of their
respective properties or assets; or (B) violate or
constitute a material default (or an event which, with notice or
lapse of time, or both, would constitute a material default)
under, result in the termination of or a right of termination or
cancellation under, accelerate the performance required by, or
result in the creation of any liens, pledges, charges,
mortgages, encumbrances, adverse claims or security interests
(except for such transfer restrictions of general applicability
as may be provided under the Securities Act, and the “blue
sky” laws of the various States of the United States)
(collectively, “Liens”) (other than Permitted
Liens) upon any of the respective properties, Intellectual
Property or other assets of, the Company or any of its
Subsidiaries under, any of the terms, conditions or provisions
of any Material Contract.
(d) Assuming the accuracy of the representations made in
Section 4.8, the affirmative vote (in person or by proxy)
of the holders of a majority of the outstanding shares of
Company Common Stock at the Company Stockholders Meeting or any
adjournment or postponement thereof in favor of the adoption of
this Agreement (the “Company Stockholder
Approval”) is the only vote or approval of the holders
of any class or series of capital stock of the Company or any of
its Subsidiaries which is necessary to adopt this Agreement and
approve the Transactions.
Section 3.4 Governmental
Approvals. Except for: (a) the filing
with the SEC of a proxy statement relating to the Company
Stockholders Meeting (as amended or supplemented from time to
time, the “Proxy Statement”) and the related
transaction statement on
Schedule 13E-3
(the
“Schedule 13E-3”)
and other filings required under, and compliance with other
applicable requirements of, the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder
(the “Exchange Act”), and the rules of The
Nasdaq Stock Market; (b) the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware
pursuant to the DGCL; (c) filings required under, and
compliance with other applicable requirements of, the HSR Act;
and (d) filings required under, and compliance with other
applicable requirements of,
non-U.S. Laws
intended to prohibit, restrict or regulate actions or
transactions having the purpose or effect of monopolization,
restraint of trade, harm to competition or effectuating foreign
investment (collectively, “Foreign Antitrust
Laws”), no consents or approvals of, or filings,
declarations or registrations with, any Governmental Authority
are necessary for the execution and delivery of this Agreement
by the Company and the consummation by the Company of the
Transactions, other than such other consents, approvals,
filings, declarations or registrations that, if not obtained,
made or given, would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect
or to have a material adverse effect on the Company’s
ability to consummate the Transactions.
(a) Since January 1, 2003, the Company has filed and
furnished all required reports, schedules, forms, prospectuses
and registration, proxy and other statements required to be
filed or furnished by it with or to the SEC (collectively, and
in each case including all exhibits and schedules thereto and
documents incorporated by reference therein, the
“Company SEC Documents”). None of the
Company’s Subsidiaries is required to file periodic reports
with the SEC pursuant to the Exchange Act. As of their
respective effective dates (in the case of Company SEC Documents
that are registration statements filed pursuant to the
requirements of the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (the
“Securities Act”)) and as of the respective
dates of the last amendment filed with the SEC (in the case of
all other Company SEC Documents), the Company SEC Documents
complied in all material respects with the requirements of the
Exchange Act and the Securities Act, as the case may be, and the
rules and regulations of the SEC promulgated thereunder, each as
in effect on the applicable date referred to above, applicable
to such Company SEC Documents, and none of the Company SEC
Documents as of such respective dates contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading. As of the date of this
Agreement, there are no material unresolved comments issued by
the staff of the SEC with respect to any of the Company SEC
Documents.
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(b) Each of the consolidated financial statements of the
Company included in the Company SEC Documents complied in all
material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect
thereto, was prepared in accordance with GAAP (except, in the
case of unaudited quarterly statements, as indicated in the
notes thereto) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and
fairly presented in all material respects the consolidated
financial position of the Company and its consolidated
Subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited quarterly statements,
to normal year-end audit adjustments, none of which has been or
will be, individually or in the aggregate, material to the
Company and its Subsidiaries, taken as a whole).
(c) Neither the Company nor any of its Subsidiaries nor, to
the Knowledge of the Company, any director, officer, agent,
employee or other Person acting on behalf of the Company or any
of its Subsidiaries, has: (i) used any corporate or other
funds for unlawful contributions, payments or gifts, or made any
unlawful expenditures relating to political activity to
government officials or others or established or maintained any
unlawful or unrecorded funds, in any case in violation of
Section 30A of the Exchange Act; or (ii) accepted or
received any unlawful contributions, payments, gifts or
expenditures.
(d) Neither the Company nor any of its Subsidiaries has any
liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise), except liabilities or
obligations: (i) as and to the extent set forth on the
unaudited consolidated balance sheet of the Company and its
Subsidiaries as of June 30, 2006 (the “Balance
Sheet Date”) (including the notes thereto) included in
the Company SEC Documents filed by the Company and publicly
available prior to the date of this Agreement (“Filed
Company SEC Documents”); (ii) incurred after the
Balance Sheet Date in the ordinary course of business consistent
with past practice that, individually or in the aggregate, have
not had and would not reasonably be expected to have a Company
Material Adverse Effect; (iii) for performance under each
loan or credit agreement, debenture, note, bond, mortgage,
indenture, deed of trust, license, lease, contract or other
agreement, instrument or obligation, whether written or oral,
that is enforceable against the Company or its Subsidiaries
(each, a “Contract”) in accordance with their
respective terms and conditions; and (iv) under this
Agreement.
9
order to make the statements therein, in light of the
circumstances under which they are made, not misleading, and the
Proxy Statement and such other documents filed with the SEC by
the Company (including the
Schedule 13E-3)
will comply in all material respects with the provisions of the
Exchange Act; provided, however, that no representation
is made by the Company with respect to statements made therein
based on information supplied by Parent or Merger Sub for
inclusion in such documents.
(a) The Company and each of its Subsidiaries has timely
filed, or has caused to be timely filed on its behalf (taking
into account any extension of time within which to file), all
Tax Returns required to be filed by it for which the last day
for timely filing has past, and all such Tax Returns and
elections are accurate and complete in all material respects.
All Taxes required to be paid by the Company and each of its
Subsidiaries have been timely paid. The Company has never
received a written claim from any Governmental Authority in a
jurisdiction where the Company or any of its Subsidiaries does
not file Tax Returns that the Company or any of its Subsidiaries
is or may be subject to taxation by that jurisdiction that has
not been resolved. There are no Liens for Taxes (other than
Taxes not yet due and payable) upon any of the assets of the
Company or any of its Subsidiaries.
(b) The Company and each of its Subsidiaries have withheld
and paid all Taxes required to have been withheld and paid in
connection with any amounts paid to any employee, independent
contractor, creditor, stockholder, or other third party.
(c) The most recent financial statements contained in the
Filed Company SEC Documents reflect an adequate reserve for all
Taxes payable by the Company and its Subsidiaries for all
taxable periods and portion thereof through the date of such
financial statements. No deficiency with respect to Taxes has
been asserted or assessed against the Company or any of its
Subsidiaries.
(d) Neither the Company nor any of its Subsidiaries has
constituted, or has intended or purported to constitute, either
a “distributing corporation” or a “controlled
corporation” (within the meaning of
Section 355(a)(1)(A) of the Code) in a distribution of
stock qualifying, or intended or purported to qualify, for
tax-free treatment under Section 355 of the Code since
January 1, 2004.
(e) To the Knowledge of the Company, no audit or other
administrative or court proceedings is pending with or is being
conducted by any Governmental Authority with respect to Taxes of
the Company or any of its Subsidiaries and no written notice
thereof has been received and is outstanding.
(f) Neither the Company nor any of its Subsidiaries is a
party to any contract, agreement, plan or other arrangement
that, individually or collectively, would give rise to the
payment of any amount which would not be deductible by reason of
Section 280G of the Code or would give rise to an excise
Tax pursuant to Section 4999 of the Code.
(g) Neither the Company nor any of its Subsidiaries is a
party to or is bound by any Tax allocation or sharing agreement.
Neither the Company nor any of its Subsidiaries (A) has
been a member of an Affiliated Group filing a consolidated
federal income Tax Return (other than a group the common parent
of which is the Company) or (B) has an liability for the
Taxes of any other Person (other than the Company or any of its
Subsidiaries) under Treasury Regulation § 1.1502-6 (or
any similar provision of state, local or foreign law), as a
transferee or successor, by contract, or otherwise.
(h) Neither the Company nor any Subsidiary will be required
to include any item of income in, or exclude any item of
deduction from, taxable income for any taxable period (or
portion thereof) ending after the Closing Date as a result of
(A) a change in method of accounting for a taxable period
ending on or prior to the Closing Date, (B) any
“closing agreement,” as described in Section 7121
of the Code (or any corresponding provision of state, local or
foreign income Tax law), (C) any installment sale or open
transaction disposition made on or prior to the Closing Date, or
(D) any prepaid amount received on or prior to the Closing
Date.
(i) The Company is not and has not been at any time during
the 5-year
period ending on the Closing Date a “United States real
property holding corporation” within the meaning of
Section 897 of the Code.
10
(j) For purposes of this Agreement:
(i) “Affiliated Group” shall mean an affiliated
group as defined in Code § 1504 (or any similar
combined, consolidated or unitary group defined under state,
local or foreign Income Tax law), (ii) “Taxes”
shall mean: (A) all federal, state, local or foreign taxes,
charges, fees, imposts, levies or other tax of any kind
whatsoever; and (B) all interest, penalties, fines,
additions to tax or additional amounts, whether or not disputed,
imposed by any Taxing Authority in connection with any item
described in clause “(A)” of this sentence; and
(iii) “Tax Returns” shall mean any return,
report, claim for refund, estimate, information return or
statement, tax election or other similar document relating to,
filed, or required to be filed with any Governmental Authority
with respect to Taxes, including any schedule or attachment
thereto, and including any amendment thereof.
(a) Section 3.11(a) of the Company Disclosure Schedule
sets forth a list, separately with respect to each country in
which the Company or any of its Subsidiaries has employees, of
all Company Plans (as defined below). “Company
Plans” shall mean the following as of the date of this
Agreement: (i) all “employee benefit plans” (as
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”));
and (ii) all other written employee benefit plans,
programs, policies, agreements or arrangements, that in the case
of either clause “(i)” or clause “(ii)” of
this sentence: (A) providing for bonus or other incentive
compensation, equity or equity-based compensation, retirement
benefit, deferred compensation, change in control rights or
benefits, termination or severance benefits, stock purchase,
sick leave, vacation pay, salary continuation, hospitalization,
medical insurance, life insurance, fringe benefits or other
compensation; and (B) to which the Company or any of its
Subsidiaries or any of its ERISA Affiliates maintains,
contributes to or has any obligation or liability (contingent or
otherwise) thereunder for current or former directors, officers
or employees of the Company or any of its Subsidiaries (the
“Employees”) or to which the Company or any of
its Subsidiaries has any obligation or liability (contingent or
otherwise); provided, however, that neither a
Governmental Program nor any plan, agreement or arrangement
providing for “at will” employment which can be
terminated without liability in excess of $50,000 shall
constitute a Company Plan. “Governmental
Program” shall mean a plan, program or other
arrangement to which the Company or its Subsidiaries is required
to contribute by applicable Law; for clarity and not by way of
limitation, payments by the Company pursuant to The Federal
Insurance Contributions Act are payments to a Governmental
Program. As of the date of this Agreement no Company Plan which
is subject to ERISA is a “multiemployer plan,” as
defined in Section 3(37) or 4001(a)(3) of ERISA (a
“Multiemployer Plan”), or is or has been
subject to Sections 4063 or 4064 of ERISA.
(b) The Company Plans are being and have been maintained,
funded and administered in all material respects, in accordance
with their terms and with all applicable provisions of ERISA,
the Code and other applicable Laws.
(c) Each Company Plan that is intended to meet the
requirements for country specific tax-favored treatment under
Subchapter B of Chapter 1 of Subtitle A of the Code (in the
case of tax-favored treatment for US federal income tax
purposes) or other applicable Laws (other than the Laws of the
United States or jurisdictions located within the United States
and its territories) meets such requirements, including:
(i) any Company Plans intended to qualify under
Section 401 of the Code are so qualified; and (ii) any
trusts intended to be exempt from federal income taxation under
Section 501 of the Code are so exempt. Nothing has occurred
or is reasonably expected to occur with respect to the operation
of the Company Plans that, notwithstanding the taking of
corrective action by the Company, would reasonably be expected
to cause the loss of such tax favored treatment, qualification
or exemption, or the imposition of any liability, penalty or tax
under ERISA, the Code or other applicable Law.
(d) Neither the Company, nor any of its Subsidiaries nor
any other Person who is treated as a single employer together
with the Company or any of its Subsidiaries pursuant to
Section 414(b), (c), (m) (o) of ERISA (all of the
foregoing, “ERISA Affiliates”) maintains,
sponsors, contributes to, has any obligation to contribute to,
or has any liability or potential liability under or with
respect to (i) any “defined benefit plan” as
defined in Section 3(35) of ERISA or any other plan subject
to the funding requirements of Section 412 of the Code or
Section 302 of Title IV of ERISA, or (ii) any
Multiemployer Plan. Neither the Company nor any Subsidiaries nor
any of their ERISA Affiliates have any liability or potential
liability to the Pension Benefit Guaranty Corporation or
otherwise under Title IV of ERISA.
11
(e) With respect to each Company Plan, all contributions
(including all employer contributions and employee salary
reduction contributions) that are due have been made within the
time periods prescribed by ERISA and the Code, and all
contributions for any period ending on or before the Closing
Date that are not yet due have been made or properly accrued.
All premiums or other payments for all periods ending on or
prior to the Closing Date have been paid or properly accrued
with respect to each Company Plan that is an employee welfare
benefit plan (as defined in Section 3(1) of ERISA). As of
the date of this Agreement, none of the Company Plans has any
material unfunded liabilities that are not accurately reflected
on the latest balance sheet included in the Filed Company SEC
Documents.
(f) Neither the Company nor any of its Subsidiaries or
ERISA Affiliates, or any organization to which the Company is a
successor or parent corporation within the meaning of
Section 4069(b) of ERISA, has engaged in any transaction
within the meaning of Section 4069 or 4212(c) of ERISA as
to which the Company or any of its Subsidiaries has any
obligation or liability, contingent or otherwise.
(g) None of the Company Plans provide for post-employment
life or health insurance, or other welfare benefits coverage for
any participant or any beneficiary of a participant, except as
may be required under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended
(“COBRA”) or other applicable Laws. Each of the
Company and any ERISA Affiliate which maintains a “group
health plan” within the meaning Section 5000(b)(1) of
the Code has complied with the requirements of
Section 4980B of the Code, COBRA, Part 6 of Subtitle B
of Title I of ERISA and any similar statute.
(h) Except as provided in any Company Stock Plan or in any
employment agreement disclosed in the Company Disclosure
Schedule, neither the execution and delivery of this Agreement
nor the consummation of the Transactions will: (i) result
in any payment becoming due to any Employee; (ii) increase
any benefits otherwise payable under any Company Plan; or
(iii) result in the acceleration of the time of payment or
vesting of any such benefits under any such plan.
(i) No stock or other security issued by the Company or any
of its Subsidiaries forms a material part of the assets of any
Company Plan. For purposes of this Section 3.11(i), a
Company Stock Plan shall not be deemed to be a Company Plan.
(j) None of the current Employees is represented in his or
her capacity as an employee of the Company or any of its
Subsidiaries by any labor organization or works council or
similar representative. Neither the Company nor any of its
Subsidiaries has recognized any labor organization, nor has any
labor organization been elected as the collective bargaining
agent of any Employees, nor is the Company or any of its
Subsidiaries a party to any collective bargaining agreement or
union contract recognizing any labor organization as the
bargaining agent of any Employees. There is no union
organization activity involving any of the Employees, pending
or, to the Knowledge of the Company, threatened in writing.
There is no picketing, pending or, to the Knowledge of the
Company, threatened in writing, and there are no strikes,
slowdowns, work stoppages, lockouts, arbitrations or other
similar labor disputes involving any of the Employees pending
or, to the Knowledge of the Company, threatened in writing.
There has been no “mass layoff” or “plant
closing” (as defined by the Worker Adjustment and
Retraining Notification Act and any similar state or local
“mass layoff” or “plant closing” law) with
respect to the Company or any of its Subsidiaries since
January 1, 2004.
(a) The Company and each of its Subsidiaries is in
compliance in all material respects with all applicable
Environmental Laws. To the Knowledge of the Company, no facts,
circumstances or conditions exist with respect to the Company or
any of its Subsidiaries that would, individually or in the
aggregate, reasonably be expected to give rise to Environmental
Liabilities to the Company or its Subsidiaries in excess of
$500,000.
(b) Except to the extent the following would not,
individually or in the aggregate, reasonably be expected to give
rise to Environmental Liabilities in excess of $500,000, to the
Knowledge of the Company, there is not now, nor has there been
in the past, on, in or under any real property currently or
previously owned, leased or operated by the Company or any of
its Subsidiaries or its or their predecessors: (i) any
underground storage tanks, above-ground storage tanks, dikes or
impoundments; (ii) any asbestos-containing materials;
(iii) any polychlorinated biphenyls;
12
(iv) any radioactive substances; or (v) any other
substance that would give rise to any liabilities or
investigative, corrective or remedial obligations pursuant to
any Environmental Laws.
(c) For purposes of this Agreement:
(i) “Environmental Laws” means all Laws
relating in any way to the environment, preservation or
reclamation of natural resources, the presence, management or
Release of, or exposure to, Hazardous Materials, or to human
health and safety, including the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C.
§ 9601 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. App. § 1801 et
seq.), the Resource Conservation and Recovery Act
(42 U.S.C. § 6901 et seq.), the Clean Water Act
(33 U.S.C. § 1251 et seq.), the Clean Air Act
(42 U.S.C. § 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. § 2601 et seq.), the
Federal Insecticide, Fungicide and Rodenticide Act
(7 U.S.C. § 136 et seq.), and the Occupational
Safety and Health Act (29 U.S.C. § 651 et seq.),
as each has been amended and the regulations promulgated
pursuant thereto and all analogous state, local or foreign laws
and regulations.
(ii) “Environmental Liabilities” means,
with respect to any Person, all liabilities, obligations,
responsibilities, remedial actions, losses, damages, costs and
expenses (including all reasonable fees, disbursements and
expenses of counsel, experts and consultants and costs of
investigation and feasibility studies), fines, penalties,
sanctions and interest incurred as a result of any claim or
demand by any other Person or arising under any Environmental
Law, in any case to the extent based upon or arising under any
Environmental Law, environmental Permit or order or agreement
with any Governmental Authority or other Person under
Environmental Laws.
(iii) “Hazardous Materials” means any
material, substance of waste that is regulated, classified, or
otherwise characterized under or pursuant to any Environmental
Law as “hazardous,” “toxic,”
“pollutant,” “contaminant,”
“radioactive” or words of similar meaning or effect,
including petroleum and its by-products, asbestos,
polychlorinated biphenyls, radon, urea formaldehyde insulation,
chlorofluorocarbons and all other ozone-depleting substances.
(iv) “Release” means any spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing or migrating
into or through the environment or any natural or man-made
structure.
(a) The Company and its Subsidiaries are the sole and
exclusive owners of or have a valid right to use, sell or
license, as the case may be, all Intellectual Property necessary
to enable the Company and its Subsidiaries to conduct their
business in the manner in which such businesses are currently
being conducted (collectively, the “Company Intellectual
Property”). The Company Intellectual Property owned by
the Company and its Subsidiaries is not subject to any Lien
(other than Permitted Liens).
(b) To the Knowledge of the Company, the products and
operation of the business of the Company and its Subsidiaries
and the use of the Company Intellectual Property in connection
therewith do not infringe, misappropriate, constitute an
unauthorized use of or otherwise violate any Intellectual
Property right of any third party. Since January 1, 2004,
the Company and its Subsidiaries have not received any written
notices alleging or claiming that the Company and its
Subsidiaries are infringing, misappropriating, making unlawful
use of or otherwise violating any Intellectual Property from any
third party, or any written demands or offers to license patents
with regard to which the Company consulted with outside patent
counsel.
(c) As of the date of this Agreement, neither the Company
nor any of its Subsidiaries has licensed any of the Company
Intellectual Property to any Person on an exclusive basis, nor
has the Company or any of its Subsidiaries entered into any
Contract limiting its ability to exploit fully any of the
Company Intellectual Property owned by the Company and its
Subsidiaries (excluding Intellectual Property licensed on a
nonexclusive basis to customers in the ordinary course of
business).
(d) No non-public, proprietary Company Intellectual
Property owned by the Company and its Subsidiaries that is
material to the business of the Company and its Subsidiaries
taken as a whole as currently conducted, has been authorized to
be disclosed or, to the Knowledge of the Company, actually
disclosed by the Company or any of
13
its Subsidiaries to any employee or third party other than
pursuant to a non-disclosure agreement or other confidentiality
obligations that protect the proprietary interests of the
Company and its Subsidiaries in and to such Company Intellectual
Property. The Company and its Subsidiaries have taken reasonable
security measures to protect the confidentiality of confidential
Company Intellectual Property owned by the Company and its
Subsidiaries. The Company and its Subsidiaries have also taken
reasonable security measures to protect the confidentiality of,
and have not disclosed or authorized the disclosure of, any
confidential, proprietary Company Intellectual Property that is
not owned by the Company and its Subsidiaries, except for
instances in which the failure to take such security measures,
or the disclosure of or authorization to disclose such Company
Intellectual Property, did not breach any legal duty owed by the
Company or any of its Subsidiaries to a third party with respect
to such Company Intellectual Property.
(e) To the Knowledge of the Company, all material
Intellectual Property owned by the Company or any of its
Subsidiaries is valid and enforceable (except with respect to
items for which applications are pending).
(f) To the Knowledge of the Company, no third party is
infringing, violating, misusing or misappropriating any material
Intellectual Property of the Company or any of its Subsidiaries,
and no such claims have been made in writing against a third
party by the Company or any of its Subsidiaries since
January 1, 2004 (other than claims which have been resolved
to the satisfaction of the Company).
(g) The Company has implemented reasonable measures
designed to ensure that all officers, directors, agents,
consultants and contractors have executed written agreements
containing assignment provisions in favor of the Company or a
Subsidiary of the Company as assignee and conveying to the
Company or a Subsidiary of the Company ownership of all of such
person’s Intellectual Property rights in software currently
licensed or under development by the Company or any of its
Subsidiaries (other than rights, such as moral rights, that
cannot be assigned as a matter of law).
14
in part, of the execution and delivery of this Agreement or the
consummation of the Transactions, other than solely as a
stockholder of the Company or as a holder of Options, Rights or
Stock Awards.
ARTICLE 4
Parent and Merger Sub jointly and severally represent and
warrant to the Company as follows:
(a) Each of Parent and Merger Sub has all necessary
corporate power and authority to execute and deliver this
Agreement and to perform their respective obligations hereunder
and to consummate the Transactions. The execution, delivery and
performance by Parent and Merger Sub of this Agreement, and the
consummation by Parent and Merger Sub of the Transactions, have
been duly authorized and approved by their respective Boards of
Directors (and promptly following the execution hereof will be
adopted by Parent as the sole stockholder of Merger Sub) and no
other corporate action on the part of Parent and Merger Sub is
necessary to authorize the execution, delivery and performance
by Parent and Merger Sub of this Agreement and the consummation
by them of the Transactions. This Agreement has been duly
executed and delivered by Parent and Merger Sub and, assuming
due authorization, execution and delivery hereof by the Company,
constitutes a legal, valid and binding obligation of each of
Parent and Merger Sub, enforceable against each of them in
accordance with its terms, subject to the Bankruptcy and Equity
Exception.
(b) Neither the execution and delivery of this Agreement by
Parent and Merger Sub, nor the consummation by Parent or Merger
Sub of the Transactions, nor compliance by Parent or Merger Sub
with any of the terms or provisions hereof, will:
(i) conflict with or violate any provision of the
certificate of incorporation or bylaws of Parent or Merger Sub;
or (ii) assuming that the authorizations, consents and
approvals referred to in Section 4.3 are obtained and the
filings referred to in Section 4.3 are made:
(A) violate any Law, judgment, writ or injunction of any
Governmental Authority applicable to Parent or any of its
Subsidiaries or any of their respective properties or assets; or
(B) violate, conflict with, result in the loss of any
benefit under, constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default)
under, result in the termination of or a right of termination or
cancellation under, accelerate the performance required by, or
result in the creation of any Lien upon any of the respective
properties or assets of, Parent or Merger Sub or any of their
respective Subsidiaries under, any of the terms, conditions or
provisions of any Contract to which Parent, Merger Sub or any of
their respective Subsidiaries is a party, or by which they or
any of their respective properties or assets may be bound or
affected except, in the case of clause “(ii)” of
this sentence, for such violations, conflicts, losses, defaults,
terminations, cancellations, accelerations or Liens as,
individually or in the aggregate, would not reasonably be
expected to prevent or materially delay or materially impair the
ability of Parent or Merger Sub to consummate the Transactions
(a “Parent Material Adverse Effect”).
Section 4.3 Governmental
Approvals. Except for: (a) the filing
with the SEC of the
Schedule 13E-3
and other filings required under, and compliance with applicable
requirements of, the Securities Act and the Exchange Act;
(b) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware pursuant to the
DGCL; and (c) filings required under, and compliance with
other applicable requirements of, the HSR Act and Foreign
Antitrust Laws, no consents or approvals of, or filings,
declarations or registrations with, any Governmental Authority
are necessary for the execution and delivery of this Agreement
by Parent and Merger Sub or the consummation by Parent and
Merger Sub of the Transactions, other than such other consents,
approvals, filings, declarations or registrations that, if not
obtained, made or given, would not, individually or in the
aggregate, reasonably be expected to have a Parent Material
Adverse Effect.
15
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
ARTICLE 5
(a) Each of the Company, Parent and Merger Sub shall as
soon as practicable following the date of this Agreement prepare
and file with the SEC the
Schedule 13E-3
and the Company shall as soon as practicable following the date
of this Agreement prepare and file with the SEC the Proxy
Statement in preliminary form. The Company shall use
commercially reasonable efforts to: (i) respond to any
comments on the Proxy Statement or
Schedule 13E-3
or requests for additional information from the SEC with respect
thereto as soon as practicable after receipt of any such
comments or requests and to have the Proxy Statement and
Schedule 13E-3
cleared by the SEC as promptly as practicable after the initial
filing thereof; and (ii) cause the Proxy Statement to be
mailed to the stockholders of the Company as promptly as
practicable following clearance by the SEC. The Company shall
promptly: (A) notify Parent upon the receipt of any such
comments or requests; and (B) provide Parent with copies of
correspondence between the Company and its Representatives, on
the one hand, and the SEC and its staff, on the other hand, with
respect to the
Schedule 13E-3
and the Proxy Statement or additional information requests.
Prior to responding to such comments or requests or the filing
of the
Schedule 13E-3
or filing or mailing of the Proxy Statement, as the case may be:
(1) each of the Company, Parent and Merger Sub shall
provide the other party with a reasonable opportunity to review
and comment on any drafts of the Proxy Statement, the
Schedule 13E-3
and related correspondence and filings submitted to the SEC
and/or its
staff, and will in good faith consider such comments; and
(2) to the extent practicable, the Company and its outside
counsel shall provide Parent and its outside counsel with the
opportunity to participate in communications with the SEC and
its staff (including all meetings and telephone conferences)
relating to the Proxy Statement, the
Schedule 13E-3,
this Agreement or any of the Transactions. Subject to
Section 5.3(c), the Proxy Statement and
Schedule 13E-3
shall include the Company Board Recommendation and a copy of the
written opinion of Jefferies referred to in Section 3.14.
If at any time prior to the Company Stockholders Meeting any
event shall occur, or fact or information shall be discovered by
the Company, Parent or Merger Sub, that is required to be set
forth in an amendment of or a supplement to the Proxy Statement
or
Schedule 13E-3,
the Company, Parent or Merger Sub, as the case may be, shall
promptly inform the other of such occurrences or discoveries,
and in accordance with the procedures set forth in this
Section 5.1(a), prepare and file with the SEC such
amendment or supplement as soon thereafter as is reasonably
practicable and cause such amendment or supplement to be
distributed to the stockholders of the Company if and to the
extent required by applicable Law. Parent agrees to furnish to
the Company all information concerning Parent and its
Subsidiaries, officers, directors and stockholders as may be
reasonably requested by the Company in order for it to comply
with its obligations under this Section 5.1(a).
16
(b) The Company shall, as soon as practicable following the
clearance of the Proxy Statement by the SEC, establish a record
date for, duly call, give notice of, convene and hold a meeting
of its stockholders (the “Company Stockholders
Meeting”) to obtain the Company Stockholder Approval.
Subject to Section 5.3(c), the Proxy Statement shall
include a description of the Board’s determinations
referred to in Section 3.3(b) (including the Company Board
Recommendation), and, unless the Board of Directors (or any
committee thereof) shall have taken any of the actions referred
to in the second sentence of Section 5.3(c) (other than the
actions that are conditions required for the Board or any
committee thereof to withdraw or modify the Company Board
Recommendation or its recommendation with respect to the Merger,
as the case may be, under clause “(A)” in such
sentence), shall use its commercially reasonable efforts to
obtain the Company Stockholder Approval. Without limiting the
generality of the foregoing, the Company agrees that its
obligations pursuant to the first sentence of this
Section 5.1(b) shall not be affected by the withdrawal or
modification by either the Company Board or the Strategic
Committee of the Company Board Recommendation.
(a) authorize for issuance, issue, sell, grant, dispose of,
pledge or otherwise encumber any notes, bonds or other debt
securities, shares of its capital stock, voting securities,
equity interests or any securities or rights convertible into,
exchangeable or exercisable for or evidencing the right to
subscribe for any shares of its capital stock, voting securities
or equity interests, or any rights, warrants, options, calls,
commitments or any other agreements of any character to purchase
or acquire any shares of its capital stock, voting securities,
equity interests or any securities or rights convertible into,
exchangeable or exercisable for or evidencing the right to
subscribe for, any shares of its capital stock, voting
securities or equity interests; provided, however, that
the Company may issue shares of Company Common Stock to
participants in the ESPP in accordance with the terms thereof,
and the Company may issue shares of Common Stock upon the
exercise of options to purchase shares of Company Common Stock,
in each case that are outstanding on the date of this Agreement
and in accordance with the terms thereof; (ii) redeem,
purchase or otherwise acquire any outstanding shares of Company
Capital Stock, or any rights, warrants or options to acquire any
shares of Company Capital Stock, other than pursuant to any
restricted stock purchase agreement or any similar Contract in
existence as of the date of this Agreement and disclosed to
Parent; (iii) declare, set aside for payment or pay any
dividend on, or make any other distribution in respect of, any
shares of Company Capital Stock or otherwise make any payments
to its stockholders in their capacity as such (other than
dividends by a direct or indirect wholly owned Subsidiary of the
Company to its parent); or (iv) split, combine, subdivide
or reclassify any shares of Company Capital Stock;
(b) establish or acquire any Subsidiary;
(c) incur any indebtedness for borrowed money or guarantee
any indebtedness, other than (i) borrowings from the
Company by a direct or indirect wholly owned Subsidiary of the
Company and (ii) the issuance of letters of credit under
the Company’s existing credit facility, in any case in the
ordinary course of business consistent with past practice;
17
(d) sell, transfer, lease, license, mortgage, encumber or
subject to any Lien (other than Permitted Liens) or otherwise
dispose of (including pursuant to a sale-leaseback transaction
or an asset securitization transaction) any of its properties or
assets (including securities of Subsidiaries) to any Person,
except: (i) licenses granted by the Company in the ordinary
course of business to distributors, resellers and customers for
customers’ use of the Company’s products and services;
(ii) pursuant to Contracts in force at the date of this
Agreement and disclosed to Parent; or (iii) dispositions of
obsolete assets;
(e) make any capital expenditures, except in the ordinary
course of business consistent with past practice and in an
amount not in excess of $300,000 in the aggregate for the
Company and its Subsidiaries taken as a whole during any
three-consecutive month period;
(f) make any acquisition (by purchase of securities or
assets, merger, consolidation or otherwise) of any other Person,
business or division or make any investment (by contribution to
capital, property transfers, purchase of securities or
otherwise) in, or loan (other than to its employees for
reimbursable travel and other business expenses incurred in the
ordinary course of business consistent with past practice) to,
or any guarantee for the benefit of, any Person;
(g) make any advance to its employees (other than for
reimbursable travel and other business expenses incurred in the
ordinary course of business consistent with past practice);
(h) increase in any manner the compensation of any of its
directors, officers or employees, enter into any indemnification
agreement (other than agreements with persons who become
directors and officers of the Company after the date of this
Agreement in a form substantially similar to indemnification
agreements between the Company and its officers and directors as
of the date of the agreement), enter into, establish or amend
any employment, consulting, retention, change in control,
collective bargaining, bonus or other incentive compensation,
profit sharing, health or other welfare, pension, retirement,
severance, deferred compensation or other compensation or
benefit plan or agreement with, for or in respect of any
stockholder, director, officer, other employee or consultant,
other than as required pursuant to applicable Law or the terms
of agreements in effect as of the date of this Agreement and
disclosed in the Company Disclosure Schedule;
(i) hire any employee except for (i) the replacement
of any current Employee whose employment with the Company or any
of its Subsidiaries is terminated for any reason (with such
replacement employee receiving substantially similar or lesser
compensation and benefits as such terminated Employee) and
(ii) the hiring of a new employee who does not replace any
current Employee pursuant to clause “(i)” (A) the
sum of whose annual noncontingent cash compensation and annual
target commission payments does not exceed $150,000 and
(B) whose annual noncontingent cash compensation and annual
target commission payments, when aggregated with the annual
noncontingent cash compensation and annual target commission
payments of all other such new employees, does not exceed
$500,000;
(j) enter into, or materially amend, modify or supplement
any Material Contract outside the ordinary course of business
consistent with past practice (except as may be necessary for
the Company to comply with its obligations hereunder) or waive,
release, grant, assign or transfer any of its material rights or
claims (whether such rights or claims arise under a Material
Contract or otherwise) or settle any material litigation or
claim made against the Company;
(k) except for customer and reseller contracts entered into
in the ordinary course of business, renegotiate or enter into
any new license, agreement or arrangement relating to any
Intellectual Property sold or licensed by the Company or any of
its Subsidiaries;
(l) make or change any material election concerning Taxes
or Tax Returns (other than elections made in the ordinary course
of business), file any material Tax Return or file any amended
Tax Return, or consent to any extension or waiver of the
limitation period applicable to any Tax claim or assessment
relating to the Company or any of its Subsidiaries;
(m) make any material changes in financial or tax
accounting methods, principles or practices or change an annual
accounting period, except insofar as may be required by a change
in GAAP or applicable Law;
(n) amend the Company Charter Documents or the Subsidiary
Documents;
18
(o) adopt a plan or agreement of complete or partial
liquidation, dissolution, restructuring (other than actions
taken consistent with the Restructuring Plan), recapitalization,
merger, consolidation or other reorganization;
(p) terminate the employment of any officer of the Company,
or take any action that would result in any officer of the
Company having a “Good Reason” (as such term is
defined under that certain Key Employee Retention and Severance
Plan adopted January 22, 2002); or
(q) agree, in writing or otherwise, to take any of the
actions described in clauses “(a)” through
“(p)” of this sentence.
(a) The Company shall cause its and its Subsidiaries’
respective directors, officers, financial advisors, attorneys,
accountants and agents (other than directors, officers and
agents who are members of the Parent Group) to (and the Company
shall use commercially reasonable efforts to cause its and its
Subsidiaries’ employees (other than officers and directors
and members of the Parent Group) to) immediately cease any
discussions or negotiations with any Person with respect to a
Takeover Proposal pending on the date of this Agreement (it
being understood that commercially reasonable efforts with
respect to the employees (other than officers and directors and
members of the Parent Group) of the Company and its Subsidiaries
shall mean causing such employees to comply with this sentence
promptly after the Company discovers any noncompliance by such
employees). The Company shall cause its and its
Subsidiaries’ respective directors, officers, financial
advisors, attorneys, accountants and agents (other than
directors, officers and agents who are members of the Parent
Group) not to (and the Company shall use commercially reasonable
efforts to cause its and its Subsidiaries’ employees (other
than officers and directors and members of the Parent Group) not
to): (i) solicit, initiate or knowingly encourage the
initiation of any proposals that constitute, or that would
reasonably be expected to lead to, any Takeover Proposal;
(ii) participate in any discussions with any third party
regarding, or furnish to any third party any non-public
information with respect to, any Takeover Proposal (it being
understood that commercially reasonable efforts with respect to
the employees of the Company and its Subsidiaries (other than
officers and directors and members of the Parent Group) shall
mean causing such employees to comply with this sentence
promptly after the Company discovers any noncompliance by such
employees); (iii) enter into any agreement, arrangement or
understanding with respect to, or otherwise endorse, any
Takeover Proposal; or (iv) terminate, amend, modify or
waive any material provision of any confidentiality or
standstill agreement to which the Company is a party (other than
involving Parent or its affiliates); provided, however,
that notwithstanding anything to the contrary contained in
this Section 5.3 or elsewhere in this Agreement, if the
Company receives a bona fide written Takeover Proposal not
solicited by the Company in violation of this Section 5.3
that the Board of Directors (acting on the recommendation of the
Strategic Committee) determines in good faith is reasonably
likely to result in a Superior Proposal (and not be withdrawn)
and with respect to which the Board of Directors or the
Strategic Committee acting on its behalf determines in good
faith, after consulting with outside legal counsel, that the
failure to take the following action would be inconsistent with
its fiduciary duties to the Company’s stockholders, then
the Company and its Subsidiaries and their respective directors,
officers and Representatives may (but only prior to obtaining
the Company Stockholder Approval), in response to such Takeover
Proposal: (A) enter into a confidentiality agreement with
the Person making such Takeover Proposal; (B) furnish
non-public information with respect to the Company and its
Subsidiaries to the Person making such Takeover Proposal (and to
such Person’s Representatives), but only if: (1) such
Person first enters into a confidentiality agreement with the
Company; and (2) concurrently with the delivery to such
Person, the Company delivers to Parent all such information not
previously provided to Parent; and (C) participate in
discussions and negotiations with such Person (and with such
Person’s Representatives) regarding such Takeover Proposal
(and take the actions referred to in clause “(iv)” of
this sentence with respect to such Person and such Takeover
Proposal in connection with such discussions and negotiations).
Solely for purposes of this Section 5.3(a), any action
taken by a Person who is not an officer or director of the
Company or one of its Subsidiaries shall not be deemed to be an
action taken by the Company or any of its Subsidiaries.
(b) In addition to the other obligations of the Company set
forth in this Section 5.3, promptly (but in any event
within one business day) after any executive officer or director
of the Company (other than an executive officer or director who
is a member of the Parent Group) becomes aware that any proposal
has been received by, any
19
information has been requested from or any discussions or
negotiations have been sought to be initiated or continued with,
the Company in respect of any Takeover Proposal, the Company
shall advise Parent of such proposal, request or other contact
(including any terms and conditions thereof and the identity of
the person making such proposal, request or other contact and
shall advise Parent of any amendments to such proposal or
amendments proposed by the Person making such Takeover
Proposal). Prior to taking any of the actions referred to in the
proviso of Section 5.3(a), the Board of Directors shall
notify Parent of any such action it proposes to take (acting on
the recommendation of the Strategic Committee) with respect to
such Takeover Proposal. Without limiting the foregoing, at least
two business days prior to withdrawing or modifying the Company
Board Recommendation or recommending a Takeover Proposal
pursuant to Section 5.3(c), the Board of Directors shall
notify Parent of any such action it proposes to take (acting on
the recommendation of the Strategic Committee) and, during such
two business day period, the Strategic Committee shall negotiate
in good faith with Parent with respect to any revised proposal
to acquire the Company Common Stock that Parent may make prior
to or during such two business day period; provided,
however, that if the Board of Directors or the Strategic
Committee acting on its behalf determines in good faith after
consulting with outside legal counsel, that the failure to make
such withdrawal, modification or recommendation within such two
business day period would be inconsistent with its fiduciary
duties to the Company’s stockholders, then such two
business day period shall be such shorter period as the Board of
Directors or the Strategic Committee acting on its behalf
determines is not inconsistent with its fiduciary duties to the
Company’s stockholders (it being agreed and understood that
the foregoing proviso shall not apply to or in any way be deemed
to shorten the two business day periods described in
Section 7.1(e)(ii)).
(c) Except as permitted by this Section 5.3(c):
(i) the Board of Directors shall not withdraw or modify, or
propose publicly to withdraw or modify, in a manner adverse to
Parent, the Company Board Recommendation; (ii) neither the
Board of Directors nor any committee thereof shall approve or
recommend, or propose publicly to approve or recommend, any
Takeover Proposal; and (iii) neither the Board of Directors
nor any committee thereof shall authorize or cause the Company
or any of its Subsidiaries to enter into any letter of intent,
agreement in principle, memorandum of understanding, merger,
acquisition, purchase or joint venture agreement related to any
Takeover Proposal (other than a confidentiality agreement
pursuant to Section 5.3(a)). Notwithstanding the foregoing
or any other provision of this Agreement, (A) the Board of
Directors may withdraw or modify the Company Board
Recommendation, any committee of the Board of Directors may
withdraw or modify its recommendation with respect to the Merger
and the Board of Directors (or any committee thereof) may
recommend a Takeover Proposal, if: (1) the Company shall
have provided to Parent, at least two business days prior to
each meeting of the Board of Directors at which the Board
considers the possibility of withdrawing the Company Board
Recommendation or modifying the Company Board Recommendation in
a manner adverse to Parent (or such lesser amount of time as is
provided to the members of the Board of Directors giving notice
of the meeting or of the fact that at such meeting the Board
will be asked to consider the possibility of withdrawing the
Company Board Recommendation or modifying the Company Board
Recommendation), written notice of such meeting together with
reasonably detailed information regarding the circumstances
giving rise to the consideration of such possibility;
(2) in the case of the Board of Directors (or committee
thereof) recommending a Takeover Proposal (but not in the case
of the Board of Directors withdrawing or modifying the Company
Board Recommendation or any committee of the Board of Directors
withdrawing or modifying its recommendation with respect to the
Merger), the Board of Directors (acting on the recommendation of
the Strategic Committee) determines in good faith that the
Company has received a Superior Offer (that has not been
withdrawn); and (3) the Board of Directors or the Strategic
Committee acting on its behalf determines in good faith after
consulting with outside legal counsel, that the failure to make
such withdrawal, modification or recommendation would be
inconsistent with its fiduciary duties to the Company’s
stockholders; and (B) the Board of Directors (acting on the
recommendation of the Strategic Committee) may,
contemporaneously with the termination of this Agreement
pursuant to Section 7.1(e)(ii), cause the Company to enter
into a letter of intent, agreement in principle, memorandum of
understanding, merger, acquisition, purchase or joint venture
agreement or other agreement related to any Takeover Proposal.
The Company shall notify Parent promptly of: (x) any
withdrawal of or modification to the Company Board
Recommendation; and (y) the circumstances surrounding such
withdrawal or modification.
(d) Nothing in this Section 5.3 shall prohibit the
Board of Directors (or any committee thereof) from taking and
disclosing to the Company’s stockholders a position
contemplated by
Rules 13e-3,
14d-9 and
14e-2(a) or
Item 1012(a) of
Regulation M-A
promulgated under the Exchange Act.
20
(a) Upon the terms and subject to the conditions set forth
in this Agreement, each of the parties hereto shall, and shall
cause their respective Subsidiaries to, use commercially
reasonable efforts to take, or cause to be taken, all actions
necessary, proper and advisable under applicable Laws to
consummate the Transactions as promptly as practicable. In
furtherance and not in limitation of the foregoing, each party
hereto shall: (i) make an appropriate filing of a
Notification and Report Form pursuant to the HSR Act with
respect to the Transactions as promptly as practicable and
supply as promptly as practicable any additional information and
documentary material that may be requested pursuant to the HSR
Act; (ii) make any additional filings required by any
applicable Competition Law and take all other actions reasonably
necessary, proper or advisable to cause the expiration or
termination of the applicable waiting periods under the HSR Act
or other Competition Laws, and comply with applicable Foreign
Antitrust Laws, as promptly as practicable; and
(iii) subject to applicable Laws relating to access to and
the exchange of information, use commercially reasonable efforts
to: (A) cooperate with each other in connection with any
filing or submission and in connection with any investigation or
other inquiry under or relating to any Competition Law;
(B) keep the other parties informed of any communication
received by such party from, or given by such party to, the
Federal Trade Commission (the “FTC”), the
Antitrust Division of the Department of Justice (the
“DOJ”) or any other Governmental Authority and
of any communication received or given in connection with any
legal, administrative, arbitral or other proceeding by a private
party, in each case regarding any of the Transactions; and
(C) permit the other parties hereto to review in advance
any communication intended to be given by it to, and consult
with the other parties in advance of any meeting or conference
with, the FTC, the DOJ or any such other Governmental Authority,
and to the extent permitted by the FTC, the DOJ or such other
applicable Governmental Authority, give the other parties the
opportunity to attend and participate in such meetings and
conferences.
(b) In furtherance and not in limitation of the covenants
of the parties contained in Section 5.4(a), in the event
that any legal, administrative, arbitral or other proceeding is
instituted (or threatened to be instituted) by a Governmental
Authority or private party challenging any of the Transactions
or in the event that any Governmental Authority shall otherwise
object to any of the Transactions, each of Parent, Merger Sub
and the Company shall cooperate with each other and use its
respective reasonable efforts: (i) to vigorously defend,
contest and resist any such proceeding; (ii) to have
vacated, lifted, reversed or overturned any injunction, order,
judgment, ruling or decree, whether temporary, preliminary or
permanent, that is in effect and that prohibits, prevents or
restricts consummation of the Transactions; and (iii) to
resolve objections.
21
other information concerning its and its Subsidiaries’
business, properties and personnel as Parent may reasonably
request for the purposes referred to above. Parent shall hold
information received from the Company pursuant to this
Section 5.6 in confidence in accordance with the terms of
that certain non-disclosure agreement, dated August 18,
2006, among the parties hereto. No investigation, or information
received, pursuant to this Section 5.6 will affect or
modify any of the representations and warranties of the Company.
(a) From and after the Effective Time, the Surviving
Corporation shall (and Parent shall cause the Surviving
Corporation to) indemnify, defend and hold harmless, and advance
expenses to, the individuals who at or prior to the Effective
Time were directors or officers of the Company or any of its
Subsidiaries (collectively, the “Indemnitees”)
with respect to all acts or omissions by them in their
capacities as such at any time prior to the Effective Time, to
the fullest extent required by: (i) the Company Charter
Documents as in effect on the date of this Agreement; and
(ii) any applicable contract as in effect on the date of
this Agreement which is disclosed to Parent.
(b) Without limiting the provisions of Section 5.8(a),
during the period commencing with the Closing and ending on the
sixth anniversary of the Effective Time, Parent shall:
(i) indemnify and hold harmless each Indemnitee against and
from any costs or expenses (including reasonable attorneys’
fees), judgments, fines, losses, claims, damages, liabilities
and amounts paid in settlement in connection with any claim,
action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, to the extent such
claim, action, suit, proceeding or investigation arises out of
or pertains to: (A) any action or omission or alleged
action or omission in such Indemnitee’s capacity as a
director, officer or employee of the Company or any of its
Subsidiaries; or (B) any of the Transactions; and
(ii) pay in advance of the final disposition of any such
claim, action, suit, proceeding or investigation the expenses
(including attorneys’ fees) of any Indemnitee upon receipt
of an undertaking by or on behalf of such Indemnitee to repay
such amount if it shall ultimately be determined that such
Indemnitee is not entitled to be indemnified. Notwithstanding
anything to the contrary contained in this Section 5.8(b)
or elsewhere in this Agreement, neither Parent nor the Surviving
Corporation shall settle or compromise or consent to the entry
of any judgment or otherwise seek termination with respect to
any claim, action, suit, proceeding or investigation for which
indemnification may be sought under this Section 5.8(b)
unless such settlement, compromise, consent or termination
includes an unconditional release of all Indemnitees from all
liability arising out of such claim, action, suit, proceeding or
investigation.
(c) Parent will provide, or cause the Surviving Corporation
to provide, for a period of not less than six years after the
Effective Time, the Indemnitees who are insured under the
Company’s directors’ and officers’ insurance and
indemnification policy with an insurance and indemnification
policy that provides coverage for events occurring at or prior
to the Effective Time (the “D&O Insurance”)
that is no less favorable than the existing
22
policy of the Company or, if substantially equivalent insurance
coverage is unavailable, the best available coverage;
provided, however, that Parent and the Surviving
Corporation shall not be required to pay an annual premium for
the D&O Insurance in excess of 200% of the annual premium
currently paid by the Company for such insurance; provided,
further, that if the annual premiums of such insurance
coverage exceed such amount, Parent or the Surviving Corporation
shall be obligated to obtain a policy with the greatest coverage
available for a cost not exceeding such amount.
(d) The Indemnitees to whom this Section 5.8 applies
shall be third party beneficiaries of this Section 5.8. The
provisions of this Section 5.8 are intended to be for the
benefit of each Indemnitee, his or her heirs and his or her
representatives.
(e) In the event that the Surviving Corporation or any of
its successors or assigns consolidates with or merges into any
other Person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or
transfers or conveys all or a majority of its properties and
assets to any Person, then, and in each such case, proper
provision shall be made so that the successors and assigns of
the Surviving Corporation shall succeed to the obligations set
forth in this Section 5.8.
(a) Unless Parent delivers written notice to the Company no
later than five business days prior to the Effective Time
providing otherwise, the Company shall take all action necessary
to terminate, or cause to be terminated, before the Effective
Time, any Company Plan that is a 401(k) plan or other defined
contribution retirement plan, employee stock purchase plan or
any nonqualified deferred compensation plan. In the event Parent
does not deliver such written notice, then within ninety
(90) days of the Closing Date, Parent shall, to the extent
permitted by law, arrange for the employees of the Company who
were eligible to participate in the Vitria Technology, Inc.
401(k) Plan the opportunity to participate in a plan described
in Section 401(k) of the Code.
(b) Notwithstanding anything in this Agreement to the
contrary, nothing in this Section 5.11 shall impede or
limit Parent, Merger Sub, the Company or any of their Affiliates
from terminating any of their employees at any time for any
reason or no reason, subject to the provisions of applicable Law
and applicable Contracts, and nothing in this Section 5.11
is intended or shall confer on any person other than the parties
to this Agreement any rights or remedies or the status of a
third party beneficiary hereunder.
23
ARTICLE 6
(i) Any waiting period (and any extension of such period)
under the HSR Act applicable to the Transactions shall have
expired or shall have been terminated;
(ii) The applicable filings, approvals or expiration or
termination of any applicable waiting periods under Foreign
Antitrust Laws in jurisdictions in which such filings,
approvals, expiration or termination are required by Law to be
made, obtained, expired or terminated prior to the Closing,
shall have been made or obtained or shall have expired or been
terminated, except where the failure to make such filing, obtain
such approval or allow such waiting period to expire or
terminate would not have a Company Material Adverse Effect or a
Parent Material Adverse Effect; and
24
ARTICLE 7
(a) by the mutual written consent of the Company and Parent
duly authorized by each of their respective Boards of Directors
(and, in the case of the Company, as agreed to by the Strategic
Committee); or
(b) by either of the Parent or the Company (acting at the
direction of the Strategic Committee):
(i) if the Merger shall not have been consummated on or
before March 31, 2007 (the “Outside
Date”); provided, however, that the right to
terminate this Agreement under this Section 7.1(b)(i) shall
not be available to a party if the failure of the Merger to have
been consummated on or before the Outside Date was primarily due
to the failure of such party or any Affiliate of such party to
perform any of its obligations under this Agreement; or
(ii) if any Restraint having the effect set forth in
Section 6.1(c) shall be in effect and shall have become
final and nonappealable; provided, however, that the
right to terminate this Agreement under this
25
Section 7.1(b)(ii) shall not be available to a party if the
imposition of such Restraint was primarily due to the failure of
such party to perform any of its obligations under this
Agreement; or
(iii) if the Company Stockholder Approval shall not have
been obtained at the Company Stockholders Meeting duly convened
therefor or at any adjournment or postponement thereof; or
(c) by Parent if: (i) there is an inaccuracy in any of
the representations or warranties of the Company in this
Agreement such that the condition set forth in
Section 6.2(a) would not be satisfied; or (ii) there
has been a breach by the Company of any of its covenants in this
Agreement such that the condition set forth in
Section 6.2(b) would not be satisfied (the events described
in clauses “(i)” and “(ii)” of this sentence
being referred to as a “Terminating Company
Breach”); provided, however, that if such
Terminating Company Breach is curable through the exercise of
reasonable efforts, Parent may not terminate this Agreement
under this Section 7.1(c) unless such Terminating Company
Breach has not been cured within twenty business days after
notice thereof is received by the Company; or
(d) by Parent within ten days following the Board of
Directors (or any committee thereof) withdrawing or modifying
the Company Board Recommendation in a manner adverse to
Parent; or
(e) by the Company (acting at the direction of the
Strategic Committee):
(i) if: (A) there is an inaccuracy in any of the
representations or warranties of Parent or Merger Sub in this
Agreement such that the condition set forth in
Section 6.3(a) would not be satisfied; or (B) there
has been a breach by Parent or Merger Sub of any of their
respective covenants in this Agreement such that the condition
set forth in Section 6.3(b) would not be satisfied (the
events described in clauses “(A)” and “(B)”
of this sentence being referred to as a “Terminating
Parent Breach”); provided, however, that if such
Terminating Parent Breach is curable through the exercise of
reasonable efforts, the Company may not terminate this Agreement
under this Section 7.1(e)(i) unless such Terminating Parent
Breach has not been cured within twenty business days after
notice thereof is received by Parent; or
(ii) at any time prior to the Company Stockholder Approval,
following receipt of a Superior Proposal, if: (A) there
shall not have been any material breach of any material
obligations contained in Section 5.3 in connection with
such Superior Proposal; (B) the Board of Directors shall
have authorized the Company to enter into a binding, written,
definitive acquisition agreement providing for the consummation
of the transaction contemplated by such Superior Offer (the
“Specified Acquisition Agreement”);
(C) the Company shall have delivered to Parent a written
notice (that includes a copy of the Specified Acquisition
Agreement as an attachment) stating that the Company intends to
enter into the Specified Acquisition Agreement contemporaneously
with the termination of this Agreement pursuant to this
Section 7.1(e)(ii); (D) a period of at least two
business days shall have elapsed since the receipt by Parent of
such notice, (E) within two business days following the
delivery of such notice, Parent does not propose adjustments in
the terms and conditions of this Agreement which the
Company’s Board of Directors (or any committee thereof)
determines in its good faith judgment (after consultation with
an independent financial advisor of nationally recognized
reputation) to be more favorable to the Company’s
stockholders than such Superior Proposal; (F) the Company
shall have promptly advised Parent of any modification proposed
to be made to the Specified Acquisition Agreement from the form
delivered pursuant to clause ‘‘(C)” of this
Section 7.1(e)(ii); and (G) on the date two business
days after Parent receives the written notice referred to in
clause “(C)” of this Section 7.1(e)(ii), the
Company shall have executed and delivered to the other party
thereto the Specified Acquisition Agreement (as it may have been
modified to make it more favorable to the Company), and the
Specified Acquisition Agreement (as it may have been so
modified) shall have thereupon become fully binding and
effective (it being understood that if the Company validly
terminates this Agreement pursuant to this
Section 7.1(e)(ii) by satisfying all of the conditions set
forth in clauses “(A)” through “(G)” of this
Section 7.1(e)(ii), then the termination of this Agreement
shall be deemed to occur contemporaneously with the execution
and delivery of the Specified Acquisition Agreement by the
Company).
26
pursuant to which such termination is made, and this Agreement
shall forthwith become null and void (other than the provisions
of the penultimate sentence of Section 5.6,
Sections 5.10, 7.2 and 7.3 and Article 8, all of which
shall survive termination of this Agreement), and there shall be
no liability on the part of Parent, Merger Sub or the Company or
their respective directors, officers and Affiliates, except:
(a) the Company may have liability as provided in
Section 7.3; and (b) nothing shall relieve any party
hereto from liability for any willful, material breach of this
Agreement.
(a) In the event that this Agreement is terminated by:
(i) the Company pursuant to Section 7.1(e)(ii);
(ii) Parent pursuant to Section 7.1(d); or
(iii) by the Company or Parent pursuant to
Section 7.1(b)(iii) if, prior to the Company Stockholders
Meeting: (A) a Takeover Proposal shall have been publicly
disclosed, announced, commenced, submitted or made;
(B) such Takeover Proposal shall not have been withdrawn at
least five days prior to the Company Stockholders Meeting; and
(C) within 180 days after the date of the termination
of this Agreement, the Company and the Person who had commenced,
submitted or made such Takeover Proposal consummate an
Acquisition Transaction,
then, in the case of clause “(i)” and clause
“(ii)” of this sentence, at the time of termination
or, in the case of clause “(iii)” of this sentence, at
the time of consummation of the Acquisition Transaction referred
to in clause ‘‘(iii)” of this sentence, the
Company shall pay to Parent, a fee of $2,800,000, in cash
(reduced by any amounts payable pursuant to
Section 7.3(b)). Such payment shall be made by wire
transfer of immediately available funds to an account to be
designated by Parent.
(b) In the event that this Agreement is terminated by the
Company or Parent pursuant to Section 7.1(b)(iii), the
Company shall reimburse Parent for reasonable, documented,
out-of-pocket
Expenses incurred by Parent and Merger Sub in an amount not to
exceed $500,000. Such payment shall be made by wire transfer of
immediately available funds to an account to be designated by
Parent within 10 business days of the Company’s receipt of
adequate documentation of the amount of such Expenses.
(c) For purposes of this Agreement, an “Acquisition
Transaction” means any transaction or series of
transactions involving: (A) an acquisition (whether in a
single transaction or a series of related transactions) of
assets of the Company and its Subsidiaries having a fair market
value equal to 50% or more of the consolidated assets of the
Company and its Subsidiaries, taken as a whole; (B) a
direct or indirect acquisition (whether in a single transaction
or a series of related transactions) of 50% or more of the
voting power of the Company; (C) a tender offer or exchange
offer that if consummated would result in any Person
beneficially owning 50% or more of the voting power of the
Company; or (D) a merger, consolidation, share exchange,
business combination, recapitalization or similar transaction
involving the Company or involving any Subsidiary (or
Subsidiaries) (other than: (1) mergers, consolidations,
business combinations or similar transactions involving solely
the Company
and/or one
or more Subsidiaries of the Company; and (2) mergers,
consolidations, business combinations or similar transactions
that if consummated would result in a Person beneficially owning
not more than 50% of any class of equity securities of the
Company or any of its Subsidiaries.
(d) The Company and Parent acknowledge that the fee and the
other provisions of this Section 7.3 are an integral part
of the Transactions and that, without these agreements, Parent
and the Company would not enter into this Agreement.
ARTICLE 8
(a) no representation or warranty of the Company contained
in this Agreement shall be deemed to be untrue, incorrect or
breached if: (i) such representation or warranty was true
and correct as of the date of this agreement, and the failure of
the representation or warranty to be true or correct, or the
breach of the representation or warranty, was primarily due to
an affirmative action of (A) Parent or any other Person
27
included in the Parent Group, (B) any Person or Persons if
and to the extent that such action was requested by, or taken at
the direction of Parent or any other Person included in the
Parent Group, or (C) any officer director or employee of
Parent or any other Person included in the Parent Group (each
such officer, director or employee a “Parent
Nominee”), in each case regardless of the capacity in
which such Person was acting; or (ii) any facts or
circumstances that constitute or would reasonably be expected to
give rise to the untruth or inaccuracy in (or breach of) the
representation or warranty were within the actual knowledge of
Parent or any other Person included in the Parent Group or any
Parent Nominee as of the date of this Agreement; and
(b) the Company shall not be deemed to have breached any of
its covenants or agreement contained in Section 5.2 of this
Agreement if the breach of the covenant or agreement results
from any action of (i) Parent or any other Person included
in the Parent Group, (ii) any Person or Persons if and to
the extent that such action was requested by, or taken at the
acting at the direction of, Parent or any other Person included
in the Parent Group, or (iii) any Parent Nominee, in each
case regardless of the capacity in which such Person was acting
or failing to act.
28
agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter
hereof and thereof; and (b) except for the provisions of
Section 5.8, are not intended to and shall not confer upon
any Person other than the parties hereto any rights or remedies
hereunder.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without
regard to the principles of conflicts of laws thereof.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS.
Section 8.10 Consent
to Jurisdiction. Each of the parties hereto:
(a) consents to submit itself to the personal jurisdiction
of the Court of Chancery of the State of Delaware, in the event
any dispute arises out of this Agreement or any of the
Transactions; (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request
for leave from any such court; and (c) agrees that it will
not bring any action relating to this Agreement or any of the
Transactions in any court other than the Court of Chancery of
the State of Delaware.
If to Parent or Merger Sub, to:
Innovation Technology Group, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: XxXxx Xxxxx
Facsimile No.: (000) 000-0000
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: XxXxx Xxxxx
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Fenwick & West LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
with a further copy (which shall not constitute notice) to:
Fenwick & West LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
29
If to the Company, to:
Vitria Technology, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq. and Xxxx X. XxXxxxx, Esq.
Facsimile: (000) 000-0000
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq. and Xxxx X. XxXxxxx, Esq.
Facsimile: (000) 000-0000
(a) As used in this Agreement, the following terms have the
meanings ascribed thereto below:
“Affiliate” shall mean, as to any Person, any
other Person that, directly or indirectly, controls, is
controlled by or is under common control with, such Person. For
this purpose, “control” (including, with its
correlative meanings, “controlled by” and
“under common control with”) shall mean the
possession, directly or indirectly, of the power to direct or
cause the direction of management or policies of a Person,
whether through the ownership of securities or partnership or
other ownership interests, by contract or otherwise.
“Board of Directors” or the
“Board” shall mean the Board of Directors of
the Company.
“business day” shall mean a day except a
Saturday, a Sunday or other day on which the SEC or banks in the
City of New York are authorized or required by Law to be closed.
“Code” shall mean the Internal Revenue Code of
1986, as amended, and the rules and regulations promulgated
thereunder.
“Company Capital Stock” shall mean the Company
Common Stock and the Company Preferred Stock.
“Company Common Stock” shall mean the common
stock, par value $0.001 per share, of the Company.
“Company Preferred Stock” shall mean the
Preferred Stock, $0.001 par value per share, of the Company.
“Company Stock Plans” shall mean the Vitria
Technology, Inc. Amended and Restated 1999 Equity Incentive
Plan, the Vitria Technology, Inc. 1998 Executive Incentive Plan
and the ESPP.
“Competition Laws” shall mean the Xxxxxxx Act,
as amended, the Xxxxxxx Act, as amended, the HSR Act, the
Federal Trade Commission Act, as amended, and all other
applicable Laws issued by a Governmental Authority that are
designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of
trade or lessening of competition through merger or acquisition
“ESPP” shall mean the Vitria Technology, Inc.
1999 Employee Stock Purchase Plan.
“Expenses” shall mean all
out-of-pocket
expenses (including, without limitation, all fees and expenses
of outside counsel, investment bankers, banks, other financial
institutions, accountants, financial printers, experts and
consultants to a party hereto) incurred by a party or on its
behalf in connection with or related to the
30
investigation, due diligence examination, authorization,
preparation, negotiation, execution and performance of this
Agreement and the transactions contemplated hereby and the
financing thereof and all other matters contemplated by this
Agreement and the closing thereof, together with any
out-of-pocket
costs and expenses incurred by any party in enforcing any of its
rights set forth in this Agreement, whether pursuant to
litigation or otherwise.
“GAAP” shall mean generally accepted accounting
principles in the United States.
“Governmental Authority” shall mean any
government, court, arbitrator, regulatory or administrative
agency, commission or authority or other governmental
instrumentality, federal, state or local, domestic, foreign or
multinational.
“HSR Act” shall mean the
Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended.
“Knowledge” of any Person that is not an
individual shall mean, with respect to any matter in question,
the actual knowledge of such Person’s executive officers
and directors; provided, however, that “Knowledge”, as
it relates to the Company, its Subsidiaries or their respective
officers and directors, shall not include the any knowledge of
any of the members of the Parent Group.
“Material Contract” means the following
Contracts to which the Company or any of its Subsidiaries is a
party or under which the Company or any of its Subsidiaries has
any rights or obligations as of the date of this Agreement:
(A) each Contract that would be required to be filed as an
exhibit to a Registration Statement on
Form S-1
under the Securities Act or an Annual Report on
Form 10-K
under the Exchange Act if such registration statement or report
was filed by the Company with the SEC on the date of this
Agreement; (B) each loan or credit agreement, mortgage,
indenture, note or other Contract or instrument evidencing
indebtedness for borrowed money by the Company or any of its
Subsidiaries or any Contract or instrument pursuant to which
indebtedness for borrowed money is guaranteed by the Company or
any of its Subsidiaries or any Contract relating to the
mortgaging, pledging or otherwise placing a Lien on any material
asset or material group of assets of the Company or any of its
Subsidiaries; (C) each customer or supply Contract
(including customer maintenance Contracts) of the Company or any
Subsidiary of the Company for which payments to or from the
Company or any Subsidiary in fiscal year 2006 are reasonably
expected to be in excess of $300,000; (D) each Contract
listed on Attachment C to the Company Disclosure Schedule;
(E) each lease or rental Contract involving real property;
and (F) each lease or rental Contract involving personal
property and payments in excess of $100,000 per year
“Permitted Liens” shall mean (i) statutory
liens securing payments not yet due; (ii) security
interests, mortgages and pledges that are disclosed in the Filed
Company SEC Documents that secure indebtedness that is reflected
in the unaudited consolidated financial statements of the
Company and its Subsidiaries as of June 30, 2006; and
(iii) such other imperfections or irregularities of title
or other Liens that, individually or in the aggregate, do not
and would not reasonably be expected to materially affect the
use of the properties or assets subject thereto or otherwise
materially impair the business operations of the Company or its
Subsidiaries as currently conducted.
“Person” shall mean an individual, a
corporation, a limited liability company, a partnership, an
association, a trust or any other entity, including a
Governmental Authority.
“Public Stockholders” shall mean the
Company’s stockholders other than the Parent Group.
31
“Representatives” of any Person shall mean its
directors, officers, employees, financial advisors, attorneys,
accountants, agents and other representatives.
“Restructuring Plan” shall mean that certain
restructuring plan approved by the Board of Directors on
August 11, 2006, as described on Schedule 8.13 to the
Company Disclosure Schedule.
“Rights” shall have the meaning assigned to
such term in the ESPP.
“Software” means all: (i) computer
programs, including all software implementations of algorithms,
models and methodologies, whether in source code or object code;
(ii) databases and compilations, including all data and
collections of data, whether machine readable or otherwise;
(iii) descriptions, flow-charts and other work product used
to design, plan, organize and develop any of the foregoing,
screens, user interfaces, report formats, firmware, development
tools, templates, menus, buttons and icons; and
(iv) documentation including user manuals and other
training documentation related to any of the foregoing.
“Strategic Committee” shall mean the Strategic
Committee of the Board of Directors.
“Stock Awards” shall have the meaning assigned
to such term in the Vitria Technology, Inc. Amended and Restated
1999 Equity Incentive Plan and the Vitria Technology, Inc. 1998
Executive Incentive Plan, as applicable.
“Subsidiary” when used with respect to any
party hereto, shall mean any corporation, limited liability
company, partnership, association, trust or other entity the
accounts of which would be consolidated with those of such party
in such party’s consolidated financial statements if such
financial statements were prepared in accordance with GAAP, as
well as any other corporation, limited liability company,
partnership, association, trust or other entity of which
securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power
(or, in the case of a partnership, more than 50% of the general
partnership interests) are, as of such date, owned by such party
or one or more Subsidiaries of such party or by such party and
one or more Subsidiaries of such party.
“Superior Proposal” shall mean a bona fide
written offer to acquire, for consideration consisting of cash
and/or
securities, equity securities or assets of the Company, made by
a third party, which (A) is on terms and conditions which
the Board of Directors (acting on the recommendation of the
Strategic Committee) determines in its good faith judgment
(after consultation with an independent financial advisor of
nationally recognized reputation) to be more favorable to the
Public Stockholders than the Merger (including any adjustment to
the terms and conditions of the Merger proposed in writing by
Parent in response to such proposal) and (B) is, in the
good faith judgment of the Board of Directors (acting on the
recommendation of the Strategic Committee), reasonably capable
of being consummated in a timely manner (taking into account,
without limitation, the ready availability of cash on hand
and/or
commitments for the same, in each case as applicable, required
to consummate any such proposal and any Competition Law
approvals or non-objections).
“Takeover Proposal” shall mean any proposal or
offer from any Person (other than Parent and its Affiliates and
other than proposals or offers made to any member of the Parent
Group or for any shares of the Company held by any member of the
Parent Group) providing for any: (A) acquisition (whether
in a single transaction or a series of related transactions) of
assets of the Company and its Subsidiaries having a fair market
value equal to 25% or more of the Company’s consolidated
assets; (B) direct or indirect acquisition (whether in a
single transaction or a series of related transactions) of 25%
or more of the voting power of the Company; (C) tender
offer or exchange offer that if consummated would result in any
Person beneficially owning 25% or more of the voting power of
the Company; (D) merger, consolidation, share exchange,
business combination, recapitalization or similar transaction
involving the Company or involving any Subsidiary (or
Subsidiaries) (other than: (1) mergers, consolidations,
business combinations or similar transactions involving solely
the Company
and/or one
or more Subsidiaries of the Company; and (2) mergers,
consolidations, business combinations or similar transactions
that if consummated would result in a Person beneficially owning
not more than 25% of any class of equity securities of the
Company or any of its Subsidiaries); or (E) any public
announcement of an agreement, proposal or plan to do any of the
foregoing; in each case, other than the Transactions;
provided, however, that for purposes of
Section 7.3(a), the references to “25%” in this
definition of Takeover Proposal shall be deemed instead to refer
to “50%”.
32
“Transactions” refers to the transactions
contemplated hereby, including the Merger.
The following terms are defined in the section of this Agreement
set forth after such term below:
|
Agreement
|
First paragraph | |||
|
Appraisal Shares
|
2.2 | |||
|
Acquisition Transaction
|
7.3(c) | |||
|
Balance Sheet Date
|
3.5(d) | |||
|
Bankruptcy and Equity Exception
|
3.3(a) | |||
|
Certificate
|
2.3(a) | |||
|
Certificate of Merger
|
1.3 | |||
|
Closing
|
1.2 | |||
|
Closing Date
|
1.2 | |||
|
COBRA
|
3.11(g) | |||
|
Company Board Recommendation
|
3.3(b) | |||
|
Company Charter Documents
|
3.3(c) | |||
|
Company Disclosure Schedule
|
Article 3 | |||
|
Company Material Adverse Effect
|
3.1(a) | |||
|
Company Plans
|
3.11(a) | |||
|
Company SEC Documents
|
3.5(a) | |||
|
Company Stockholder Approval
|
3.3(d) | |||
|
Company Stockholders Meeting
|
5.1(b) | |||
|
Contract
|
3.3(c) | |||
|
D&O Insurance
|
5.8(c) | |||
|
Deficiency Amount
|
2.1(c) | |||
|
DGCL
|
1.1 | |||
|
DOJ
|
5.4(a) | |||
|
Effective Time
|
1.3 | |||
|
Eligible Option
|
2.4(a) | |||
|
Employees
|
3.11(a) | |||
|
Environmental Laws
|
3.12(d)(i) | |||
|
Environmental Liabilities
|
3.12(d)(ii) | |||
|
ERISA
|
3.11(a) | |||
|
ERISA Affiliates
|
3.11(d) | |||
|
Exchange Act
|
3.4 | |||
|
Fairness Opinion
|
3.14 | |||
|
Filed Company SEC Documents
|
3.5(d) | |||
|
Foreign Antitrust Laws
|
3.4 | |||
|
FTC
|
5.4(a) | |||
|
Hazardous Materials
|
3.12(d)(iii) | |||
|
Indemnitees
|
5.8(a) | |||
|
Jefferies
|
3.14 | |||
|
Laws
|
3.8(a) | |||
|
Liens
|
3.3(c) | |||
|
Merger
|
Recitals | |||
|
Merger Consideration
|
2.1 | |||
|
Multiemployer Plan
|
3.11(a) |
33
|
Option
|
2.4(a) | |||
|
Option Consideration
|
2.4(a) | |||
|
Outside Date
|
7.1(b)(i) | |||
|
Parent Material Adverse Effect
|
4.2 | |||
|
Paying Agent
|
2.3(a) | |||
|
Payment Fund
|
2.3(a) | |||
|
Per Share Amount
|
2.1(c) | |||
|
Per Share Cash Deficiency
|
2.1(c) | |||
|
Proxy Statement
|
3.4 | |||
|
Release
|
3.12(d)(iv) | |||
|
Restraints
|
6.1(c) | |||
|
Schedule 13E-3
|
3.4 | |||
|
SEC
|
2.4(c) | |||
|
Section 203
|
3.17 | |||
|
Section 262
|
2.2 | |||
|
Securities Act
|
3.5(a) | |||
|
Subsidiary Documents
|
3.3(c) | |||
|
Surviving Corporation
|
1.1 | |||
|
Tax Returns
|
3.10(j) | |||
|
Taxes
|
3.10(j) | |||
|
Terminating Company Breach
|
7.1(c) | |||
|
Terminating Parent Breach
|
7.1(e)(i) |
(a) When a reference is made in this Agreement to an
Article, a Section, Exhibit or Schedule, such reference shall be
to an Article of, a Section of, or an Exhibit or Schedule to,
this Agreement unless otherwise indicated. The table of contents
and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words
“include,” “includes” or
“including” are used in this Agreement, they
shall be deemed to be followed by the words “without
limitation.” The words “hereof,”
“herein” and “hereunder” and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement. All terms defined in this Agreement shall
have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise
defined therein. The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter
genders of such term.
(b) The parties hereto have participated jointly in the
negotiation and drafting of this Agreement and, in the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as jointly drafted by the parties
hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of
any provision of this Agreement.
[signature page follows]
34
VITRIA TECHNOLOGY, INC.
| By: |
/s/ Xxxxxxx
X. Xxxxx
|
Name: Xxxxxxx X. Xxxxx
| Title: | Senior Vice President and |
Chief Financial Officer
INNOVATION TECHNOLOGY GROUP, INC.
| By: |
/s/ XxXxx
Xxxxx
|
Name: XxXxx Xxxxx
| Title: | President |
ITG ACQUISITION, INC.
| By: |
/s/ XxXxx
Xxxxx
|
Name: XxXxx Xxxxx
| Title: | President |
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
35
SCHEDULE A
The “Parent Group‘
XxXxx Xxxxx
M. Xxxx Xxxxx
XXXXX/XXXXX INVESTMENTS, L.P.
Drs. XxXxx Xxxxx and M. Xxxx Xxxxx as joint tenants