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Title: |
Agreement and Plan of Merger |
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Entities: |
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Date: |
2000 |
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Preview shows 15KB of 189KB total |
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Price: |
$69 |
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ID: |
#1111425 |
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AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
1. THE MERGER 11
1.1 The Merger. 11
1.2 Effective Time. 12
1.3 Closing. 12
1.4 Certificate of Incorporation of the Surviving
Corporation. 12
1.5 Effect on Capital Stock: 12
1.6 Repayment Obligations. 21
1.7 Directors of the Surviving Corporation. 21
1.8 Officers of the Surviving Corporation. 21
1.9 Acknowledgement and Release of Stockholders. 21
2. REPRESENTATIONS AND WARRANTIES OF ANSYS 22
2.1 Organization. 22
2.2 Capitalization. 23
2.3 Authority Relative to this Agreement. 23
2.4 Shares of ANSYS Common Stock. 23
2.5 SEC Documents; Financial Statements. 23
2.6 Absence of Certain Changes. 24
2.7 No Conflicts. 24
2.8 Governmental Consents. 24
2.9 Litigation. 24
2.10 No Brokers. 24
3. REPRESENTATIONS AND WARRANTIES OF PMAC, THE CLASS A
STOCKHOLDERS, MR. SHAH, MR. WULF AND MR. STEBERL 25
3.1 Existence; Good Standing; Authority; Compliance
With Law. 25
3.2 Authorization, Validity and Effect of
Agreements. 26
3.3 Capitalization. 26
3.4 Subsidiaries. 27
3.5 Other Interests. 27
3.6 No Conflicts. 27
3.7 Governmental Consents. 27
3.8 Litigation. 28
3.9 Absence of Certain Changes. 28
3.10 Taxes. 28
3.11 Books, Records and Financial Statements. 29
3.12 Properties. 29
3.13 Proprietary Products, Trademarks, Patents and
Copyrights and Other Property Rights. 30
3.14 Environmental Matters. 31
3.15 Employee Benefit Plans. 32
3.16 Labor Matters. 33
3.17 Certain Agreements. 34
3.18 Major Contracts. 34
3.19 Absence of Undisclosed Liabilities. 35
3.20 Receivables. 35
3.21 Governmental Authorizations and Regulations. 35
3.22 Insider Transactions. 36
3.23 No Brokers. 36
3.24 Insurance. 36
3.25 Payments. 36
3.26 Full Disclosure. 36
4. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE
STOCKHOLDERS 37
4.1 Power and Authority. 37
4.2 Ownership of Stock. 37
5. CONDUCT OF BUSINESS OF PMAC PRIOR TO CLOSING 37
5.1 Ordinary Course. 38
5.2 Dividends; Changes in Stock. 38
5.3 Governing Documents. 38
5.4 No Solicitation. 38
5.5 No Acquisitions. 38
5.6 No Dispositions. 38
5.7 Indebtedness. 39
5.8 Employees. 39
5.9 Benefit Plans, etc. 39
5.10 Material Claims. 39
5.11 Elections. 39
5.12 Accounting. 39
5.13 Breach. 39
6. ADDITIONAL AGREEMENTS 39
6.1 Access to PMAC Information. 39
6.2 Stockholders Approval. 40
6.3 Reports Under Securities Exchange Act of 1934. 40
6.4 Legal Conditions to the Merger. 41
6.5 Communications. 41
6.6 Expenses. 42
6.7 Escrow Agreement. 42
6.8 Additional Actions. 42
6.9 Notification of Certain Matters. 42
6.10 Operating Authority and Reporting Structure. 42
6.11 Restriction on Transfer of ANSYS Common Stock. 42
6.12 Right of First Refusal. 43
6.13 Management of the Surviving Corporation. 43
6.14 [Intentionally Omitted.] 44
6.15 Employees. 44
6.16 Employee Bonuses. 45
6.17 Release of German and French Interests. 45
6.18 Indian Subsidiary. 45
6.19 Swiss Subsidiary. 45
6.20 Certain Tax Matters. 46
6.21 Adequate Funds for Certain Payments. 46
6.22 Option Grants. 46
7. CONDITIONS PRECEDENT 46
7.1 Conditions to Each Party's Obligations to
Effect the Merger. 46
7.2 Conditions to Obligations of ANSYS and Merger
Sub. 47
7.3 Conditions to Obligations of PMAC. 48
8. TERMINATION, AMENDMENT AND WAIVER 49
8.1 Termination. 49
8.2 Effect of Termination. 50
8.3 Amendment. 50
8.4 Extension; Waiver. 50
9. COMPETITION 50
9.1 Non-Compete. 50
9.2 Confidential Information. 51
9.3 Definition. 51
9.4 Reasonableness. 52
9.5 Injunctive Relief. 52
9.6 Severability: Separate Covenants. 52
10. INDEMNIFICATION AND CLAIMS 53
10.1 Stockholders Indemnification. 53
10.2 ANSYS Indemnification. 55
10.3 Insurance Recoveries; Tax Benefits. 56
10.4 Actual Knowledge. 56
11. GENERAL PROVISIONS 56
11.1 Survival of Representations, Warranties and
Agreements. 57
11.2 Notices. 57
11.3 Interpretation. 58
11.4 Counterparts. 58
11.5 Entire Agreement. 58
11.6 No Third Party Beneficiaries. 58
11.7 Non-Assignment. 58
11.8 Governing Law. 58
11.9 Arbitration. 58
11.10Sole Remedy. 59
11.11No Agreement Until Executed. 59
Exhibits:
Exhibit A Budget Goals
Exhibit B Accounting Expenses
Exhibit C Escrow Agreement
Exhibit D Operating Plan
Exhibit E Opinion of Counsel to PMAC
Exhibit F Opinion of Corporate Counsel of ANSYS
Exhibit G Bonus Employee Group
Exhibit H French and German Taxes
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of August 30,
2000 (this "Agreement"), is made and entered into by and among
ANSYS, Inc., a Delaware corporation ("ANSYS"), GenesisOne
Acquisition Corporation, a Delaware corporation and a wholly-
owned subsidiary of ANSYS ("Merger Sub"), Pacific Marketing and
Consulting, Inc. a California corporation ("PMAC"), Christine
Schoefer, Michael Hohmeyer, Wayne Christopher, Mary Jo Hamilton,
Michael Salari, Masoud Doroudian (the six aforelisted
individuals, the "Class A Stockholders"), Diane Poirier, Devendra
Rajwade, Jan Soreide, and Mr.Vijay Shah ("Mr. Shah"; the four
aforelisted individuals, the "Class B Stockholders" and together
with the Class A Stockholders, the "Class A and B Stockholders"),
Akila Diwakar, Philip Diwakar, Alan Magnuson, Forest Rouse,
Vladimir Griaznov, Xiaomin Wang, Jieyong Xu, Jigen Zhou, Manfred
Friedrichs, and Carsten Martens (the aforelisted ten individuals,
the "Class C Stockholders"; each of the Class A and B
Stockholders and the Class C Stockholders a "Stockholder" and
together, the "Stockholders"), Reimund Steberl ("Mr. Steberl")
and Armin Wulf ("Mr. Wulf").
WITNESSETH:
WHEREAS, ANSYS, PMAC and the Stockholders desire that the
business of PMAC be combined with that of ANSYS and that, in
connection therewith, all of the issued and outstanding Class A
Common Stock, Class B Common Stock and Class C Common Stock,
without par value, of PMAC (collectively, "PMAC Common Stock")
be converted into the consideration provided in Section 1.5 (the
"Merger Consideration"); and
WHEREAS, for this purpose ANSYS has formed Merger Sub whose
sole purpose shall be to facilitate the implementation of the
transaction by being the surviving corporation of its merger with
PMAC (the "Merger"); and
WHEREAS, ANSYS, PMAC and the Stockholders desire to make
certain representations, warranties and agreements in connection
with the Merger and to prescribe various conditions precedent to
the Merger;
NOW, THEREFORE, in consideration of these premises and the
representations, warranties and agreements herein contained, the
parties agree as follows:
1. THE MERGER
1.1 The Merger.
Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time (as defined in Section 1.2),
PMAC will be merged with and into Merger Sub and the separate
corporate existence of PMAC will thereupon cease. Merger Sub, as
the surviving corporation of the Merger (sometimes hereinafter
referred to as the "Surviving Corporation"), will continue to be
governed by the laws of the State of California. The Merger will
have the effects specified in the Delaware General Corporation
Law (the "DGCL") and, with respect to PMAC, in the Corporations
Code of the State of California (the "California Code"). Without
limiting the generality of the foregoing, and subject thereto, at
the Effective Time, all of the properties, rights, privileges,
powers, franchises, debts, liabilities, obligations and duties of
Merger Sub will continue in the Surviving Corporation unaffected
by the Merger.
1.2 Effective Time.
Pursuant to Section 1.3, at Closing Merger Sub will file a
Certificate of Merger with the Delaware Secretary of State in
accordance with the relevant provisions of the DGCL, and will
make all other filings or recordings required under the DGCL and
the California Code to consummate the Merger. The Merger will
become effective upon such filing of the Certificate of Merger or
at such other time as the parties hereto may agree and as may be
specified in the Certificate of Merger in accordance with
applicable law. The date and time when the Merger becomes
effective is herein referred to as the "Effective Time."
1.3 Closing.
(a) Subject to satisfaction (or waiver) of the conditions set
forth in Article 7, the Closing of the Merger (the "Closing")
will take place (i) at the offices of Greene Radovsky Maloney &
Share LLP, 4 Embarcadero Center, Suite 4000, San Francisco,
California, beginning at 10:00 a.m., Pacific Daylight Time, on
August 31, 2000 or (ii) at such other place, date and/or time as
the parties hereto may agree. The date upon which the Closing
occurs is herein referred to as the "Closing Date."
(b) At the Closing, (i) ANSYS shall deliver to PMAC
and/or the Stockholders' Representative, as the case may be, the
various certificates, instruments and documents required to be
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