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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

On Technology Corp.

Date:

2003

Size:

Preview shows 52KB of 194KB total

Price:

$65

ID:

#1273927

► Plans ► Agreements ► Agreements & Plans of Merger

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

SYMANTEC CORPORATION,

OUTLAW ACQUISITION CORPORATION

AND

ON TECHNOLOGY CORPORATION

OCTOBER 27, 2003

TABLE OF CONTENTS

		Page
ARTICLE 1	THE MERGER	1
1.1	The Merger	1
1.2	Effective Time; Closing	1
1.3	Effect of the Merger	1
1.4	Articles of Incorporation; Bylaws	2
1.5	Directors and Officers	2
1.6	Effect on Capital Stock	2
1.7	Exchange	4
1.8	Alternative Transaction Structure	5
1.9	Taking of Necessary Action; Further Action	5
1.10	Dissenting Shares	5

ARTICLE 2	REPRESENTATIONS AND WARRANTIES OF COMPANY	6
2.1	Organization; Subsidiaries	6
2.2	Company Capitalization	7
2.3	Obligations With Respect to Capital Stock	9
2.4	Authority; Non-Contravention	9
2.5	SEC Filings; Company Financial Statements	10
2.6	Absence of Certain Changes or Events	11
2.7	Taxes	13
2.8	Title and Operation of Properties	16
2.9	Intellectual Property	16
2.10	Compliance with Laws.	20
2.11	Litigation	20
2.12	Employee Benefit Plans	21
2.13	Environmental Matters	26
2.14	Certain Contracts	27
2.15	Customers, Distributors, OEMs and VARs	29
2.16	Brokers and Finders Fees	30
2.17	Insurance	30
2.18	Disclosure	30
2.19	Board Approval	31
2.20	Fairness Opinion	31
2.21	Privacy	31
2.22	DGCL Section 203	31

ARTICLE 3	REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB	32
3.1	Organization of Parent and Merger Sub	32
3.2	Authority; Non-Contravention	32
3.3	SEC Filings	33
3.4	Brokers and Finders Fees	33
3.5	Disclosure	33
3.6	Interim Operations of Merger Sub	34

-i-

TABLE OF CONTENTS

(continued)

		Page
3.7	Financing	34

ARTICLE 4	CONDUCT PRIOR TO THE EFFECTIVE TIME	34
4.1	Conduct of Business by Company	34

ARTICLE 5	ADDITIONAL AGREEMENTS	36
5.1	Proxy Statement, Antitrust and Other Filings	36
5.2	Meeting of Company Stockholders	38
5.3	No Solicitation	40
5.4	Confidentiality; Access to Information	41
5.5	Public Disclosure	42
5.6	Reasonable Efforts; Notification	42
5.7	Third Party Consents	43
5.8	ESPP	43
5.9	Indemnification	43
5.10	Section 16 Matters	44
5.11	Termination of Company Plans	44
5.12	Employee Benefit Matters	44

ARTICLE 6	CONDITIONS TO THE MERGER	45
6.1	Conditions to Obligations of Each Party to Effect the Merger	45
6.2	Additional Conditions to Obligations of Company	45
6.3	Additional Conditions to the Obligations of Parent and Merger Sub	46

ARTICLE 7	TERMINATION, AMENDMENT AND WAIVER	48
7.1	Termination	48
7.2	Notice of Termination; Effect of Termination	49
7.3	Fees and Expenses	50
7.4	Amendment	51
7.5	Extension; Waiver	51

ARTICLE 8	GENERAL PROVISIONS	51
8.1	Non-Survival of Representations and Warranties	51
8.2	Notices	51
8.3	Interpretation; Certain Defined Terms	52
8.4	Counterparts	54
8.5	Entire Agreement; Third Party Beneficiaries	54
8.6	Severability	54
8.7	Other Remedies; Specific Performance	54
8.8	Governing Law	54
8.9	Rules of Construction	54
8.10	Assignment	55
8.11	Attorneys Fees	55
8.12	Waiver Of Jury Trial	55

-ii-

Agreement and Plan of Merger

This AGREEMENT AND PLAN OF MERGER (this Agreement) is made and entered into as of October 27, 2003, among Symantec Corporation, a Delaware corporation (Parent), Outlaw Acquisition Corporation, a Delaware corporation and a wholly owned first-tier subsidiary of Parent (Merger Sub), and ON Technology 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 and into Company (the Merger) upon the terms and subject to the conditions of this Agreement and in accordance with the Delaware General Corporation Law (Delaware Law).

B. Parent, Merger Sub and Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and to prescribe various conditions to the Merger.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and conditions contained herein, the parties agree as follows:

ARTICLE 1

THE MERGER

1.1 The Merger. 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 cease, and Company shall continue as the surviving corporation of the Merger (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 the certificate of merger, substantially in the form attached hereto as Exhibit A, (the Certificate of Merger) with the Secretary of State of the State of Delaware in accordance with the relevant provisions of Delaware Law (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, located at 801 California Street, Mountain View, California, at a time and date to be specified by the parties, which shall be no later than the third business day after the satisfaction or waiver of the conditions set forth in Sections 6.1 and 6.3(d) below, 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

-1-

debts, liabilities and duties of Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

1.4 Articles of Incorporation; Bylaws.

(a) At the Effective Time, subject to Section 5.9, the Certificate of Incorporation of Company shall be amended and restated in its entirety to be identical to the Certificate of Incorporation of Merger Sub, as in effect immediately prior to the Effective Time, until thereafter amended in accordance with Delaware Law and as provided in such Certificate of Incorporation; provided, however, that at the Effective Time, ARTICLE 1 of the Certificate of Incorporation of the Surviving Corporation shall be amended and restated in its entirety to read as follows: The name of the corporation is ON Technology

(b) At the Effective Time, subject to Section 5.9, the Bylaws of Company shall be amended and restated in their entirety to be identical to the Bylaws of Merger Sub, as in effect immediately prior to the Effective Time, until thereafter amended in accordance with Delaware Law and as provided in such Bylaws.

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