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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: |
Electronic Data Systems Corp.; Opsware Inc.; Safeguard Scientifics, Inc.; Tangram Enterprise Solutions Inc.; Bank of America, NA |
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Date: |
2003 |
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Size: |
Preview shows 69KB of 234KB total |
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Price: |
$84 |
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ID: |
#1272716 |
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Start of Preview |
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AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
OPSWARE INC.,
TES ACQUISITION CORP.
AND
TANGRAM ENTERPRISE SOLUTIONS, INC.
DECEMBER 4, 2003
TABLE OF CONTENTS
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ARTICLE I |
THE MERGER | 1 | ||
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1.1 |
Certain Definitions | 1 | ||
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1.2 |
The Merger | 9 | ||
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1.3 |
Closing | 10 | ||
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1.4 |
Effects of the Merger | 10 | ||
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1.5 |
Effect on Debt and Securities | 10 | ||
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1.6 |
Exchange of Certificates | 12 | ||
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1.7 |
No Further Ownership Rights in Company Capital Stock | 15 | ||
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1.8 |
Tax Consequences | 15 | ||
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1.9 |
Further Action | 15 | ||
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ARTICLE II |
REPRESENTATIONS AND WARRANTIES OF COMPANY | 15 | ||
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2.1 |
Organization; Subsidiaries | 15 | ||
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2.2 |
Company Capitalization | 16 | ||
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2.3 |
Obligations With Respect to Capital Stock | 17 | ||
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2.4 |
Authority; Non-Contravention | 17 | ||
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2.5 |
SEC Filings; Company Financial Statements; Accounts Receivable | 19 | ||
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2.6 |
Absence of Certain Changes or Events | 20 | ||
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2.7 |
Taxes | 21 | ||
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2.8 |
Title to and Operation of Properties | 23 | ||
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2.9 |
Intellectual Property | 23 | ||
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2.10 |
Compliance with Laws | 28 | ||
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2.11 |
Litigation | 28 | ||
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2.12 |
Employee Benefit Plans | 28 | ||
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2.13 |
Environmental Matters | 32 | ||
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2.14 |
Certain Agreements | 33 | ||
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2.15 |
Customer Contracts | 35 | ||
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2.16 |
Brokers and Finders Fees | 35 | ||
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2.17 |
Insurance | 35 | ||
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2.18 |
Disclosure | 36 | ||
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2.19 |
Board Approval | 36 | ||
i
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2.20 |
[Intentionally omitted.] | 36 | ||
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2.21 |
Affiliates | 36 | ||
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2.22 |
Certain Transactions and Agreements | 37 | ||
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2.23 |
Company Debt | 37 | ||
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ARTICLE III |
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 37 | ||
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3.1 |
Organization of Parent and Merger Sub | 37 | ||
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3.2 |
Parent and Merger Sub Capitalization | 38 | ||
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3.3 |
Authority; Non-Contravention | 39 | ||
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3.4 |
SEC Filings; Parent Financial Statements | 40 | ||
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3.5 |
Compliance with Laws | 41 | ||
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3.6 |
Disclosure | 41 | ||
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3.7 |
Brokers and Finders Fees | 42 | ||
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3.8 |
Board Approval | 42 | ||
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3.9 |
Absence of Certain Changes or Events | 42 | ||
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3.10 |
Litigation | 42 | ||
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ARTICLE IV |
CONDUCT PRIOR TO THE EFFECTIVE TIME | 42 | ||
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4.1 |
Conduct of Business by Company | 42 | ||
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4.2 |
Amendment of Parent Charter Documents | 46 | ||
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ARTICLE V |
ADDITIONAL AGREEMENTS | 46 | ||
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5.1 |
Proxy Statement/Prospectus; Registration Statement; Other Filings | 46 | ||
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5.2 |
Meeting of Company Shareholders; Board Recommendation | 47 | ||
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5.3 |
No Solicitation | 49 | ||
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5.4 |
Confidentiality; Access to Information | 51 | ||
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5.5 |
Notification of Certain Matters | 51 | ||
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5.6 |
Public Disclosure | 51 | ||
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5.7 |
Reasonable Efforts | 51 | ||
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5.8 |
Third Party Consents | 52 | ||
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5.9 |
Employee Benefits | 52 | ||
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5.10 |
Indemnification | 52 | ||
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5.11 |
Nasdaq Listing | 53 | ||
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5.12 |
Takeover Statutes | 53 | ||
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5.13 |
Section 16 Matters | 53 | ||
ii
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5.14 |
Tax Treatment as Reorganization | 54 | ||
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5.15 |
Company Credit Facilities | 54 | ||
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5.16 |
Company Affiliates; Restrictive Legend | 54 | ||
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5.17 |
Transition Employee Arrangements | 54 | ||
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5.18 |
Transition Services Agreement | 55 | ||
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5.19 |
Termination of Company Options and Company Option Plans | 55 | ||
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5.20 |
Dissenting Shares | 55 | ||
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5.21 |
Spreadsheet | 55 | ||
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5.22 |
Transaction Tax Liabilities | 55 | ||
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5.23 |
General Release and Covenant Not to Sue | 56 | ||
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ARTICLE VI |
CONDITIONS TO THE MERGER | 56 | ||
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6.1 |
Conditions to Obligations of Each Party to Effect the Merger | 56 | ||
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6.2 |
Additional Conditions to Obligations of Company | 57 | ||
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6.3 |
Additional Conditions to the Obligations of Parent and Merger Sub | 58 | ||
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ARTICLE VII |
TERMINATION, AMENDMENT AND WAIVER | 60 | ||
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7.1 |
Termination | 60 | ||
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7.2 |
Notice of Termination; Effect of Termination | 62 | ||
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7.3 |
Fees and Expenses | 62 | ||
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7.4 |
Amendment | 63 | ||
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7.5 |
Extension; Waiver | 63 | ||
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ARTICLE VIII |
GENERAL PROVISIONS | 63 | ||
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8.1 |
Non-Survival of Representations and Warranties | 63 | ||
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8.2 |
Notices | 63 | ||
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8.3 |
Interpretation; Certain Defined Terms | 64 | ||
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8.4 |
Counterparts | 65 | ||
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8.5 |
Entire Agreement; Third Party Beneficiaries | 65 | ||
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8.6 |
Severability | 65 | ||
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8.7 |
Other Remedies; Specific Performance | 65 | ||
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8.8 |
Governing Law | 65 | ||
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8.9 |
Rules of Construction | 65 | ||
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8.10 |
Assignment | 66 | ||
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8.11 |
Waiver Of Jury Trial | 66 | ||
iii
EXHIBITS
| Exhibit A-1 | Form of Articles of Merger | |
| Exhibit A-2 | Form of Certificate of Merger | |
| Exhibit B | Form of Voting Agreement | |
| Exhibit C | Form of Non-Solicitation Agreement | |
| Exhibit D | Form of Transition Services Agreement | |
iv
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (this Agreement) is made and entered into as of December 4, 2003, among Opsware Inc., a Delaware corporation (Parent), TES Acquisition Corp., a Delaware corporation and a direct wholly-owned subsidiary of Parent (Merger Sub), and Tangram Enterprise Solutions, Inc., a Pennsylvania 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 and into Company (the Merger) upon the terms and subject to the conditions of this Agreement, pursuant to the Articles of Merger in the form of Exhibit A-1 (the Articles of Merger) and the Certificate of Merger in the form of Exhibit A-2 (the Certificate of Merger), and in accordance with the General Corporation Law of the State of Delaware (Delaware Law) and the Business Corporation Law of the Commonwealth of Pennsylvania (Pennsylvania 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(a) of the Internal Revenue Code of 1986, as amended (the Code), and the parties intend, by executing this Agreement, to adopt a plan of reorganization within the meaning of Treasury Regulation Sections 1.368-2(g) and 1.368-3(a).
C. Concurrently with the execution of this Agreement, and as a condition and inducement to Parents willingness to enter into this Agreement, Safeguard Scientifics, Inc. (and/or its wholly owned subsidiaries Safeguard Scientifics (Delaware), Inc. and Safeguard Delaware, Inc.) (SSI) and TBBH Investments Europe AG (TBBH), major shareholders of Company, are entering into Voting Agreements with Parent in the form of Exhibit B (collectively, the Voting Agreements).
D. Concurrently with the execution of this Agreement, and as a condition and inducement to Parents willingness to enter into this Agreement, certain employees of Company are entering into Non-Solicitation Agreements with Parent in the form of Exhibit C (collectively, the Non-Solicitation Agreements) which shall become effective as of the Effective Time (as defined in Section 1.1).
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 Certain Definitions. As used in this Agreement, the following terms shall have the meanings indicated below. Unless indicated otherwise, all mathematical calculations contemplated hereby shall be made to the fifth decimal place.
1
Acquisition Proposal means, with respect to a particular company, any offer or proposal (other than an offer or proposal by Parent) relating to, or involving: (A) any acquisition or purchase by any person or group (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of more than a 20% interest in the total outstanding voting securities of such party or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person or group (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) beneficially owning 20% or more of the total outstanding voting securities of such party or any of its subsidiaries or any merger, consolidation, business combination or similar transaction involving such party pursuant to which the shareholders of such party immediately preceding such transaction hold less than 80% of the equity interests in the surviving or resulting entity of such transaction; (B) any sale, lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition, or disposition of any material portion of the assets of such party and its subsidiaries; or (C) any liquidation or dissolution of such party.
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