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Document Preview Agreement and Plan of Reorganization |
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Title: |
Agreement and Plan of Reorganization |
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Entities: |
Extended Systems Inc.; Gray Cary Ware & Freidenrich; Wilson Sonsini Goodrich & Rosati |
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Date: |
2001 |
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Size: |
Preview shows 14KB of 198KB total |
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Price: |
$56 |
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ID: |
#1154775 |
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AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
PALM, INC.
AND
EXTENDED SYSTEMS INCORPORATED
Dated as of March 6, 2001
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I THE MERGER............................................. 2
1.1 The Merger............................................ 2
1.2 Effective Time; Closing............................... 2
1.3 Effect of the Merger.................................. 2
1.4 Certificate of Incorporation; Bylaws.................. 2
1.5 Directors and Officers................................ 2
1.6 Effect on Capital Stock............................... 3
1.7 Surrender of Certificates............................. 4
1.8 No Further Ownership Rights in Company Common Stock... 6
1.9 Lost, Stolen or Destroyed Certificates................ 6
1.10 Tax Consequences...................................... 6
1.11 Taking of Necessary Action; Further Action............ 6
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY......... 7
2.1 Organization of the Company........................... 7
2.2 Company Capital Structure............................. 8
2.3 Obligations With Respect to Capital Stock............. 9
2.4 Authority; Non-Contravention.......................... 10
2.5 SEC Filings; Company Financial Statements............. 11
2.6 Absence of Certain Changes or Events.................. 12
2.7 Taxes................................................. 12
2.8 Title to Properties; Absence of Liens and
Encumbrances......................................... 15
2.9 Intellectual Property................................. 15
2.10 Compliance; Permits; Restrictions..................... 18
2.11 Litigation............................................ 18
2.12 Brokers' and Finders' Fees............................ 19
2.13 Transactions with Affiliates.......................... 19
2.14 Employee Benefit Plans................................ 19
2.15 Environmental Matters................................. 23
2.16 Year 2000 Compliance.................................. 24
2.17 Agreements, Contracts and Commitments................. 24
2.18 Change of Control Payments............................ 25
2.19 Disclosure............................................ 25
2.20 Board Approval........................................ 26
2.21 Fairness Opinion...................................... 26
2.22 Section 203 of the Delaware General Corporation Law
Not Applicable....................................... 26
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT............. 26
3.1 Organization, Standing and Power...................... 27
-i-
<PAGE>
TABLE OF CONTENTS
(continued)
Page
----
3.2 Capital Structure..................................... 27
3.3 Authority; Non-Contravention.......................... 28
3.4 SEC Filings; Parent Financial Statements.............. 29
3.5 No Material Adverse Effect............................ 30
3.6 Disclosure............................................ 30
3.7 Litigation............................................ 30
3.8 Board Approval........................................ 30
3.9 Taxes................................................. 30
3.10 Brokers' and Finders' Fees............................ 31
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME................... 31
4.1 Conduct of Business by the Company.................... 31
ARTICLE V ADDITIONAL AGREEMENTS.................................. 33
5.1 Prospectus/Proxy Statement; Registration Statement;
Other Filings; Board Recommendations................. 33
5.2 Meeting of Company Stockholders....................... 34
5.3 Confidentiality; Access to Information................ 36
5.4 No Solicitation....................................... 36
5.5 Public Disclosure..................................... 38
5.6 Reasonable Efforts; Notification...................... 38
5.7 Third Party Consents.................................. 39
5.8 Stock Options and Employee Benefits................... 40
5.9 Form S-8.............................................. 41
5.10 Indemnification....................................... 41
5.11 Nasdaq Listing........................................ 41
5.12 Company Affiliate Agreement........................... 42
5.13 Employment of Key Employees........................... 42
5.14 Treatment as Reorganization........................... 42
ARTICLE VI CLOSING CONDITIONS.................................... 43
6.1 Conditions to Obligations of Each Party to Effect the
Merger............................................... 43
6.2 Additional Conditions to Obligations of the Company... 43
6.3 Additional Conditions to the Obligations of Parent.... 44
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER.................... 45
7.1 Termination........................................... 45
7.2 Notice of Termination; Effect of Termination.......... 47
7.3 Fees and Expenses..................................... 47
7.4 Amendment............................................. 48
-ii-
<PAGE>
TABLE OF CONTENTS
(continued)
Page
----
7.5 Extension; Waiver..................................... 48
ARTICLE VIII GENERAL PROVISIONS.................................. 48
8.1 Non-Survival of Representations and Warranties........ 48
8.2 Notices............................................... 48
8.3 Interpretation; Knowledge............................. 50
8.4 Counterparts.......................................... 50
8.5 Entire Agreement; Third Party Beneficiaries........... 51
8.6 Severability.......................................... 51
8.7 Other Remedies; Specific Performance.................. 51
8.8 Governing Law......................................... 51
8.9 Rules of Construction................................. 51
8.10 Assignment............................................ 51
8.11 WAIVER OF JURY TRIAL.................................. 52
-iii-
<PAGE>
INDEX OF EXHIBITS
-----------------
Exhibit A Company Voting Agreement
Exhibit B Stock Option Agreement
Exhibit C List of Company Affiliates
Exhibit D Company Affiliates Agreement
-iv-
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION is made and entered into as of
March 6, 2001, (this "Agreement"), between Palm, Inc., a Delaware corporation
("Parent") and Extended Systems Incorporated, a Delaware corporation (the
"Company").
RECITALS
--------
A. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Delaware General Corporation Law ("Delaware Law"), Parent
and the Company intend to enter into a business combination transaction.
B. The Board of Directors of the Company (i) has determined that the
Merger (as defined in Section 1.1) is fair to, and in the best interests of, the
Company and its stockholders, (ii) has approved this Agreement, the Merger and
the other transactions contemplated by this Agreement and (iii) subject to the
terms and conditions of this Agreement, has determined to recommend that the
stockholders of the Company adopt and approve this Agreement and approve the
Merger.
C. The Board of Directors of Parent (i) has determined that the Merger (as
defined in Section 1.1) is fair to, and in the best interests of, Parent and its
stockholders and (ii) has approved this Agreement, the Merger and the other
transactions contemplated by this Agreement.
D. Concurrently with the execution of this Agreement, and as a condition
and inducement to Parent's and Company's respective willingness to enter into
this Agreement, certain stockholders of Company are entering into Voting
Agreements in substantially the form attached hereto as Exhibit A (the "Company
---------
Voting Agreements").
E. Concurrently with the execution of this Agreement, and as a condition
and inducement to Parent's willingness to enter into this Agreement, the Company
is executing and delivering a Stock Option Agreement in favor of Parent in
substantially the form attached hereto as Exhibit B (the "Stock Option
---------
Agreement"). The Board of Directors of the Company has approved the Stock
Option Agreement.
F. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
<PAGE>
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2) and
----------
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of Delaware Law, the Company shall be merged with and into
Parent (the "Merger"), the separate corporate existence of the Company shall
cease and Parent shall continue as the surviving corporation. Parent as the
surviving corporation after the Merger is hereinafter sometimes referred to as
the "Surviving Corporation".
1.2 Effective Time; Closing. Subject to the provisions of this Agreement,
-----------------------
the parties hereto shall cause the Merger to be consummated by filing a
Certificate of Merger with the Secretary of State of the State of Delaware in
accordance with the relevant provisions of Delaware Law (the "Certificate of
Merger") (the time of such filing with the Secretary of State of the State of
Delaware (or such later time as may be agreed in writing by the Company and
Parent and specified in the Certificate of Merger) being the "Effective Time")
as soon as practicable on or after the Closing Date (as herein defined). Unless
the context otherwise requires, the term "Agreement" as used herein refers
collectively to this Agreement and Plan of Reorganization and the Certificate of
Merger. The closing of the Merger (the "Closing") shall take place at the
offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, at a time
and date to be specified by the parties, which shall be no later than the second
business day after the satisfaction or waiver of the conditions set forth in
Article VI, or at such other time, date and location as the parties hereto agree
in writing (the "Closing Date").
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