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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Citrix Systems, Inc.

Date:

2005

Size:

Preview shows 68KB of 390KB total

Price:

$99

ID:

#1141961

► Plans ► Agreements ► Agreements & Plans of Merger
► Technology ► Software & Programming

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

CITRIX SYSTEMS, INC.,

NCAR ACQUISITION CORPORATION,

NCAR, LLC,

NETSCALER, INC.

AND

THE STOCKHOLDER REPRESENTATIVE

Dated as of June 1, 2005

TABLE OF CONTENTS


			Page
ARTICLE I DEFINITIONS			2

	1.1	Definitions	2

ARTICLE II THE MERGER			13

	2.1	The Merger	13
	2.2	Effective Time	13
	2.3	Effect of the Merger	14
	2.4	Organizational Documents	14
	2.5	Directors, Managers and Officers	15
	2.6	Merger Consideration; Effect on Company Capital Stock; Adjustment; Escrow	15
	2.7	Dissenting Shares	19
	2.8	Surrender of Certificates	20
	2.9	No Further Ownership Rights in Company Capital Stock	21
	2.10	Lost, Stolen or Destroyed Certificates	21
	2.11	Taking of Necessary Action; Further Action	22

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY			22

	3.1	Organization of the Company	22
	3.2	Subsidiaries	22
	3.3	Company Capital Structure	23
	3.4	Authority	25
	3.5	No Conflict	26
	3.6	Consents	26
	3.7	Company Financial Statements and Internal Controls	27
	3.8	No Undisclosed Liabilities	28
	3.9	Absence of Certain Changes	28
	3.10	Accounts Receivable	31
	3.11	Restrictions on Business Activities	31
	3.12	Title to Properties; Absence of Liens and Encumbrances	32
	3.13	Governmental Authorization	33
	3.14	Intellectual Property	33
	3.15	Product Warranties; Defects; Liabilities	36
	3.16	Agreements, Contracts and Commitments	37
	3.17	Change of Control Payments	39
	3.18	Interested Party Transactions	39
	3.19	Compliance with Laws	39
	3.20	Litigation	39
	3.21	Insurance	40
	3.22	Minute Books and Corporate Registers	40
	3.23	Environmental Matters	40
	3.24	Brokers and Finders Fees	41


	3.25	Employee Plans	41
	3.26	Employment Matters	43
	3.27	Foreign Corrupt Practices Act	46
	3.28	Approvals	46
	3.29	Representations Complete	46

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB			47

	4.1	Organization of Parent and Merger Sub	47
	4.2	Authority	47
	4.3	Parent Common Stock	47
	4.4	SEC Filings; Parent Financial Statements	48
	4.5	No Material Adverse Change	48
	4.6	Capitalization	48
	4.7	Brokers and Finders Fees	49
	4.8	No Conflict	49
	4.9	Litigation	48
	4.10	Availability of Funds	49

ARTICLE V SECURITIES ACT COMPLIANCE; STOCKHOLDER APPROVAL			49

	5.1	Securities Act Exemption	49
	5.2	California Permit; Fairness Hearing	49
	5.3	Registration Statement	50
	5.4	Stockholder Approval	51

ARTICLE VI CONDUCT PRIOR TO THE EFFECTIVE TIME			52

	6.1	Conduct of Business of the Company and Subsidiaries	54

ARTICLE VII ADDITIONAL AGREEMENTS			54

	7.1	Access to Information	54
	7.2	Confidentiality	54
	7.3	Public Disclosure	54
	7.4	Consents	55
	7.5	Blue Sky Laws	55
	7.6	Conditions to the Merger; Further Assurances	55
	7.7	Notification of Certain Matters	55
	7.8	Company Affiliates	56
	7.9	Form S-8	56
	7.10	Nasdaq National Market	56
	7.11	Employee Confidentiality and Non-Solicitation Agreements	56
	7.12	Benefit Arrangements	56
	7.13	Company Options	58
	7.14	Company Warrants; Preferred Stock	59
	7.15	No Solicitation	59
	7.16	Resignation of Officers and Directors	60
	7.17	HSR Act	60
	7.18	Bridge Financing	60

- ii -


	7.19	Indemnification of Company Officers and Directors	61
	7.20	DataSite Expenses	62
	7.21	Indian Subsidiary	62

ARTICLE VIII TAX MATTERS			63

	8.1	Tax Representations	63
	8.2	Tax Covenants	65

ARTICLE IX CONDITIONS TO THE MERGER			66

	9.1	Conditions to Obligations of Each Party to Effect the Merger	66
	9.2	Additional Conditions to Obligations of the Company	67
	9.3	Additional Conditions to the Obligations of Parent and Merger Sub	68

ARTICLE X SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION; ESCROW			70

	10.1	Survival of Representations, Warranties and Covenants	70
	10.2	Indemnification	70
	10.3	Limitations	71
	10.4	Procedures	71
	10.5	Stockholder Representative; Power of Attorney	72
	10.6	No Subrogation	74

ARTICLE XI TERMINATION, AMENDMENT AND WAIVER			75

	11.1	Termination	75
	11.2	Effect of Termination	76
	11.3	Amendment	76
	11.4	Extension; Waiver	76

ARTICLE XII GENERAL PROVISIONS			77

	12.1	Notices	77
	12.2	Interpretation	78
	12.3	Counterparts	78
	12.4	Entire Agreement; Assignment	78
	12.5	Severability	78
	12.6	Other Remedies	79
	12.7	Governing Law	79
	12.8	Rules of Construction	79
	12.9	Specific Performance	79
	12.10	Expenses	79
	12.11	Parties in Interest	79

- iii -

This Agreement and Plan of Merger (the Merger Agreement) contains representations and warranties that NetScaler and Citrix made to each other. These representations and warranties were made only for the purposes of the Merger Agreement and solely for the benefit of NetScaler and Citrix as of specific dates, may be subject to important limitations and qualifications agreed to by NetScaler and Citrix and included in confidential disclosure schedules provided by NetScaler to Citrix in connection with the signing of the Merger Agreement, and may not be complete. Furthermore, these representations and warranties may have been made for the purposes of allocating contractual risk between NetScaler and Citrix instead of establishing these matters as facts, and may or may not have been accurate as of any specific date and do not purport to be accurate as of the date of the filing of the Merger Agreement by Citrix with the Securities and Exchange Commission. Accordingly, you should not rely upon the representations and warranties contained in the Merger Agreement as characterizations of the actual state of facts, since they were intended to be for the benefit of, and to be limited to, Citrix and NetScaler.

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this Agreement) is made and entered into as of June 1, 2005, by and among Citrix Systems, Inc., a Delaware corporation (Parent), NCAR Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (Merger Sub), NCAR, LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (the LLC), NetScaler, Inc., a Delaware corporation (the Company), and Gaurav Garg, as stockholder representative (the Stockholder Representative).

RECITALS

A. Parent, Merger Sub and the Company intend to effect a merger (the Merger) of Merger Sub with and into the Company in accordance with this Agreement and the General Corporation Law of the State of Delaware (the DGCL), and to the extent applicable the California General Corporation Law (the CGCL), with the Company to be the surviving corporation of the Merger. Promptly following the Merger, Parent will merge (the LLC Merger and together with the Merger, the Integrated Merger) the Interim Surviving Corporation with and into the LLC, with the LLC to be the surviving entity of the LLC Merger.

B. The Merger and the LLC Merger are intended to be part of an integrated plan and together are intended to qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the Code), and this Agreement is intended to constitute a plan of reorganization within the meaning of the regulations promulgated under Section 368 of the Code.

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