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Title: |
Agreement and Plan of Merger |
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Date: |
2001 |
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Preview shows 15KB of 219KB total |
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$78 |
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#1200359 |
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
MACROMEDIA, INC.,
ALASKA ACQUISITION CORPORATION
AND
ALLAIRE CORPORATION
JANUARY 16, 2001
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I THE MERGER...........................................................1
1.1 The Merger..................................................1
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.....................................2
1.7 Exchange of Certificates....................................4
1.8 No Further Ownership Rights in Company Common Stock.........7
1.9 Restricted Stock............................................8
1.10 Tax and Accounting Consequences.............................8
1.11 Taking of Necessary Action; Further Action..................8
ARTICLE II REPRESENTATIONS AND WARRANTIES OF COMPANY...........................9
2.1 Organization; Subsidiaries..................................9
2.2 Company Capitalization.....................................10
2.3 Obligations With Respect to Capital Stock..................11
2.4 Authority; Non-Contravention...............................12
2.5 SEC Filings; Company Financial Statements..................13
2.6 Absence of Certain Changes or Events.......................14
2.7 Taxes......................................................15
2.8 Title to Properties........................................17
2.9 Intellectual Property......................................17
2.10 Compliance with Laws.......................................20
2.11 Litigation.................................................20
2.12 Employee Benefit Plans.....................................21
2.13 Environmental Matters......................................25
2.14 Certain Agreements.........................................26
2.15 Brokers' and Finders' Fees.................................27
2.16 Insurance..................................................28
2.17 Disclosure.................................................28
2.18 Board Approval.............................................28
2.19 Fairness Opinion...........................................29
2.20 DGCL Section 203 and Rights Agreement Not Applicable.......29
2.21 Affiliates.................................................29
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB...........30
3.1 Organization of Parent and Merger Sub......................30
3.2 Parent and Merger Sub Capitalization.......................30
3.3 Authority; Non-Contravention...............................31
3.4 SEC Filings; Parent Financial Statements...................32
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3
3.5 Absence of Certain Changes or Events.......................33
3.6 Litigation.................................................33
3.7 Disclosure.................................................33
3.8 Brokers' and Finders' Fees.................................34
3.9 Tax-Free Reorganization....................................34
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME................................34
4.1 Conduct of Business by Company.............................34
4.1 Conduct of Business by Parent..............................37
ARTICLE V ADDITIONAL AGREEMENTS...............................................37
5.1 Proxy Statement/Prospectus; Registration Statement;
Antitrust and Other Filings...............................37
5.2 Meeting of Company Stockholders............................38
5.3 Confidentiality; Access to Information.....................41
5.4 No Solicitation............................................41
5.5 Public Disclosure..........................................42
5.6 Reasonable Efforts; Notification...........................43
5.7 Third Party Consents.......................................44
5.8 Stock Options; Warrants and ESPP...........................44
5.9 Form S-8...................................................45
5.10 Indemnification............................................45
5.11 Nasdaq Listing.............................................46
5.12 Rights Agreement; Takeover Statutes........................46
5.13 Certain Employee Benefits..................................46
5.14 Company Affiliates; Restrictive Legend.....................47
5.15 Letter of Company's Accountants............................47
5.16 Section 16.................................................47
5.17 Continuity of Business Enterprise..........................48
ARTICLE VI CONDITIONS TO THE MERGER...........................................48
6.1 Conditions to Obligations of Each Party to Effect
the Merger................................................48
6.2 Additional Conditions to Obligations of Company............49
6.3 Additional Conditions to the Obligations of Parent and
Merger Sub................................................50
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER.................................51
7.1 Termination................................................51
7.2 Notice of Termination Effect of Termination................52
7.3 Fees and Expenses..........................................53
7.4 Amendment..................................................54
7.5 Extension; Waiver..........................................54
ARTICLE VIII GENERAL PROVISIONS...............................................55
8.1 Non-Survival of Representations and Warranties.............55
8.2 Notices....................................................55
8.3 Interpretation; Certain Defined Terms......................56
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8.4 Counterparts...............................................57
8.5 Entire Agreement; Third Party Beneficiaries................57
8.6 Severability...............................................57
8.7 Other Remedies; Specific Performance; Fees.................57
8.8 Governing Law..............................................58
8.9 Rules of Construction......................................58
8.10 Assignment.................................................58
8.11 Waiver Of Jury Trial.......................................58
INDEX OF EXHIBITS
Exhibit A Form of Stock Option Agreement
Exhibit B Form of Voting Agreement
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5
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is made and
entered into as of January 16, 2001, among Macromedia, Inc., a Delaware
corporation ("PARENT"), Alaska Acquisition Corporation, a Delaware corporation
and a wholly owned first-tier subsidiary of Parent ("MERGER SUB"), and Allaire
Corporation, a Delaware corporation ("COMPANY").
RECITALS
A. The respective Boards of Directors of Parent, Merger Sub and
Company have approved this Agreement, and declared advisable the merger of
Merger Sub with Company (the "MERGER") upon the terms and subject to the
conditions of this Agreement and in accordance with the General Corporation Law
of the State of Delaware ("DELAWARE LAW").
B. For United States federal income tax purposes, the Merger is
intended to qualify as a "reorganization" pursuant to the provisions of Section
368 of the Internal Revenue Code of 1986, as amended (the "CODE"), except in the
event that a Conversion Event (as defined in Section 1.6) occurs. For accounting
purposes, the Merger is intended to be accounted for as a purchase under United
States generally accepted accounting principles ("GAAP").
C. Concurrently with the execution of this Agreement, and as a
condition and inducement to Parent's willingness to enter into this Agreement,
Company shall execute and deliver a Stock Option Agreement in favor of Parent in
substantially the form attached hereto as Exhibit A (the "STOCK OPTION
AGREEMENT"). The Board of Directors of Company has approved the Stock Option
Agreement.
D. Concurrently with the execution of this Agreement, and as a
condition and inducement to Parent's willingness to enter into this Agreement,
certain stockholders of Company are entering into Voting Agreements with Parent
in the form of Exhibit B (the "VOTING AGREEMENT").
In consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement, the parties
agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Unless the Conversion Event occurs, upon the terms
and subject to the conditions of this Agreement and the applicable provisions of
Delaware Law, at the Effective Time, Company shall be merged with and into
Merger Sub, the separate corporate existence of Company shall cease, and Merger
Sub shall continue as the surviving corporation of the Merger. If the Conversion
Event occurs, then upon the terms and subject to the conditions of this
Agreement and the applicable provisions of Delaware Law, at the Effective Time,
Merger Sub shall be merged with and into Company, the separate corporate
existence of Merger Sub shall
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6
cease, and Company shall continue as the surviving corporation of the Merger.
The corporation surviving the Merger shall be referred to herein 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, in such appropriate form as determined by the parties,
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 (or such later time as may be agreed in writing by Company and
Parent and specified in the Certificate of Merger) being the "EFFECTIVE TIME")
as soon as practicable on or after the Closing Date. The closing of the Merger
(the "CLOSING") shall take place at the offices of Fenwick & West LLP, 275
Battery Street, San Francisco, California, 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").
1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement and the applicable provisions of
Delaware Law. Without limiting the generality of the foregoing, at the Effective
Time, all the property, rights, privileges, powers and franchises of Company and
Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities
and duties of Company and Merger Sub shall become the debts, liabilities and
duties of the Surviving Corporation.
1.4 Certificate of Incorporation; Bylaws.
(a) The Certificate of Merger shall provide that, at the
Effective Time, the Certificate of Incorporation of the Surviving Corporation
shall be in substantially the form of the Certificate of Incorporation of the
Merger Sub as in effect immediately prior to the Effective Time; provided,
however, that as of the Effective Time, Article I of the Certificate of
Incorporation of the Surviving Corporation shall read: "The name of the
corporation is "Allaire Corporation."
(b) At the Effective Time, the Bylaws of Merger Sub, as in
effect immediately prior to the Effective Time, shall be the Bylaws of the
Surviving Corporation until thereafter amended.
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