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Title: |
Agreement and Plan of Merger |
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Entities: |
International Business Machines Corp.; Morgan Stanley & Co. Inc.; Nasdaq Stock Market Inc.; Cravath, Swaine & Moore LLP; Testa, Hurwitz & Thibeault; Waterfall Acquisition Corp.; Mainspring, Inc. |
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Date: |
2001 |
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Size: |
Preview shows 11KB of 165KB total |
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Price: |
$48 |
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ID: |
#198486 |
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AGREEMENT AND PLAN OF MERGER
Among
INTERNATIONAL BUSINESS MACHINES CORPORATION
WATERFALL ACQUISITION CORP.
and
MAINSPRING, INC.
Dated as of April 19, 2001
TABLE OF CONTENTS
ARTICLE I
The Merger
SECTION 1.01. Effective Time of the Merger..................................1
SECTION 1.02. Closing.......................................................2
SECTION 1.03. Effect of the Merger..........................................2
SECTION 1.04. Certificate of Incorporation and By-laws......................2
SECTION 1.05. Directors.....................................................2
SECTION 1.06. Officers......................................................3
ARTICLE II
Conversion of Securities
SECTION 2.01. Conversion of Capital Stock...................................3
SECTION 2.02. Exchange of Certificates......................................4
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of
the Company................................................6
SECTION 3.02. Representations and Warranties of
Parent and Sub............................................31
ARTICLE IV
Covenants Relating to Conduct of Business
SECTION 4.01. Conduct of Business..........................................33
SECTION 4.02. No Solicitation..............................................38
ARTICLE V
Additional Agreements
SECTION 5.01. Preparation of the Proxy Statement;
Stockholders Meeting......................................40
SECTION 5.02. Access to Information; Confidentiality.......................41
SECTION 5.03. Reasonable Best Efforts; Notification........................42
SECTION 5.04. Stock Options................................................44
SECTION 5.05. Indemnification, Exculpation and
Insurance.................................................46
SECTION 5.06. Fees and Expenses............................................47
SECTION 5.07. Employee Matters.............................................47
2
SECTION 5.08. Public Announcements.........................................48
SECTION 5.09. Closing Date Balance Sheet...................................48
ARTICLE VI
Conditions Precedent
SECTION 6.01. Conditions to Each Party's Obligation
to Effect the Merger......................................49
SECTION 6.02. Conditions to Obligations of Parent
and Sub...................................................49
SECTION 6.03. Conditions to Obligation of the Company......................50
SECTION 6.04. Frustration of Closing Conditions............................51
ARTICLE VII
Termination, Amendment and Waiver
SECTION 7.01. Termination..................................................51
SECTION 7.02. Effect of Termination........................................52
SECTION 7.03. Amendment....................................................53
SECTION 7.04. Extension; Waiver............................................53
ARTICLE VIII
General Provisions
SECTION 8.01. Nonsurvival of Representations and
Warranties................................................53
SECTION 8.02. Notices......................................................54
SECTION 8.03. Definitions..................................................54
SECTION 8.04. Interpretation...............................................55
SECTION 8.05. Counterparts.................................................56
SECTION 8.06. Entire Agreement; No Third-Party
Beneficiaries.............................................56
SECTION 8.07. Governing Law................................................56
SECTION 8.08. Assignment...................................................56
SECTION 8.09. Enforcement..................................................56
AGREEMENT AND PLAN OF MERGER dated as of April 19,
2001, by and among INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation ("Parent"), WATERFALL
ACQUISITION CORP., a Delaware corporation and a wholly owned
subsidiary of Parent ("Sub"), and MAINSPRING, INC., a
Delaware corporation (the "Company").
WHEREAS the Board of Directors of each of the Company and Sub
deems it in the best interests of their respective stockholders to
consummate the merger (the "Merger"), on the terms and subject to the
conditions set forth in this Agreement, of Sub with and into the Company in
which the Company would become a wholly owned subsidiary of Parent, and
such Boards of Directors have approved this Agreement and declared its
advisability (and, in the case of the Board of Directors of the Company,
recommended that this Agreement be adopted by the Company's stockholders);
WHEREAS, simultaneously with the execution and delivery of this
Agreement and as a condition and inducement to the willingness of Parent
and Sub to enter into this Agreement, Parent and certain stockholders of
the Company are entering into a stockholders agreement (the "Stockholders
Agreement") pursuant to which, among other things, such stockholders have
agreed to vote to adopt this Agreement and to take certain other actions in
furtherance of the Merger and to grant to Parent an option to purchase
their shares of Company Common Stock (as defined in Section 2.01), in each
case upon the terms and subject to the conditions set forth therein; and
WHEREAS Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with
the Merger and also to prescribe various conditions to the Merger;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
ARTICLE I
The Merger
SECTION 1.01. Effective Time of the Merger. As soon as
practicable on or after the Closing Date (as defined
2
in Section 1.02), the parties shall (i) file a certificate of merger (the
"Certificate of Merger") in such form as is required by, and executed and
acknowledged in accordance with, the relevant provisions of the General
Corporation Law of the State of Delaware (the "DGCL") and (ii) make all
other filings or recordings required under the DGCL to effect the Merger.
The Merger shall become effective at such time as the Certificate of Merger
is duly filed with the Secretary of State of the State of Delaware or at
such subsequent time as Parent and the Company shall agree and be specified
in the Certificate of Merger (the date and time the Merger becomes
effective being the "Effective Time").
SECTION 1.02. Closing. The closing of the Merger (the "Closing")
will take place at 11:00 a.m., New York time, on a date to be specified by
the parties, which shall be not later than the second business day after
satisfaction or waiver of the conditions set forth in Article VI that by
their terms are not to be satisfied or waived at the Closing (the "Closing
Date"), at the offices of Cravath, Swaine & Moore, 825 Eighth Avenue, New
York, New York 10019, unless another time, date or place is agreed to in
writing by Parent and the Company.
SECTION 1.03. Effect of the Merger. At the Effective Time, Sub
shall be merged with and into the Company, the separate corporate existence
of Sub shall cease and the Company shall continue as the surviving
corporation (the "Surviving Corporation"). The Merger shall have the
effects set forth in Section 259 of the DGCL.
SECTION 1.04. Certificate of Incorporation and By-laws. (a) The
Certificate of Incorporation of the Company, as in effect immediately prior
to the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter changed or amended as provided
therein or by applicable law.
(b) The By-laws of the Company, as in effect immediately prior to
the Effective Time, shall be the By-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
SECTION 1.05. Directors. The directors of Sub immediately prior
to the Effective Time shall be the directors of the Surviving Corporation
until the earlier of their resignation or removal or until their respective
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