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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Citibank, NA; Kintana Inc.; Mercury Interactive Corp.; Nasdaq Stock Market Inc.; Wilson Sonsini Goodrich & Rosati

Date:

2006

Size:

Preview shows 52KB of 286KB total

Price:

$63

ID:

#2267481

► Plans ► Agreements ► Agreements & Plans of Merger
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AGREEMENT AND PLAN OF MERGER

by and among

HEWLETT-PACKARD COMPANY,

MARS LANDING CORPORATION

and

MERCURY INTERACTIVE CORPORATION

Dated as of July 25, 2006


ARTICLE I DEFINITIONS & INTERPRETATIONS		2

1.1	Certain Definitions	2
1.2	Additional Definitions	10
1.3	Certain Interpretations	12

ARTICLE II THE OFFER		12

2.1	The Offer	12
2.2	Company Actions	16
2.3	Company Board of Directors and Committees; Section 14(f) of Exchange Act	18
2.4	50% Top-Up Option.	20
2.5	90% Top-Up Option.	21

ARTICLE III THE MERGER		21

3.1	The Merger	21
3.2	The Effective Time	22
3.3	The Closing	22
3.4	Effect of the Merger	22
3.5	Certificate of Incorporation and Bylaws	23
3.6	Directors and Officers	23
3.7	Effect on Capital Stock	23
3.8	Exchange of Certificates	25
3.9	No Further Ownership Rights in Company Common Stock	27
3.10	Lost, Stolen or Destroyed Certificates	27
3.11	Taking of Necessary Action; Further Action	27

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY		28

4.1	Organization and Standing	28
4.2	Subsidiaries	28
4.3	Authorization	29
4.4	Capitalization	30
4.5	Non-contravention; Required Consents	31
4.6	SEC Reports	31
4.7	Financial Statements	32
4.8	Schedule 14D-9; Proxy Statement; Offer Documents	34
4.9	No Undisclosed Liabilities	35
4.10	Absence of Certain Changes	35
4.11	Material Contracts	36
4.12	Compliance with Laws	39
4.13	Permits	39
4.14	Litigation	39
4.15	Antitrust Matters	40
4.16	Taxes	40
4.17	Environmental Matters	43
4.18	Employee Benefit Plans	44

-i-


4.19	Labor Matters	47
4.20	Real Property	47
4.21	Assets; Personal Property	48
4.22	Intellectual Property	48
4.23	Insurance	52
4.24	Related Party Transactions	53
4.25	Vote Required	53
4.26	Brokers	53
4.27	Opinion of Financial Advisors	53
4.28	State Anti-Takeover Statutes	53

ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB		53

5.1	Organization	53
5.2	Authorization	54
5.3	Non-contravention; Required Consents	54
5.4	Offer Documents; Schedule 14D-9; Proxy Statement	55
5.5	Litigation	56
5.6	Ownership of Company Capital Stock	56
5.7	Funds	56

ARTICLE VI INTERIM CONDUCT OF BUSINESS		56

6.1	Affirmative Obligations of the Company	56
6.2	Negative Obligations of the Company	56

ARTICLE VII ADDITIONAL AGREEMENTS		60

7.1	No Solicitation	60
7.2	Company Board Recommendation	63
7.3	Company Stockholders Meeting; Short-Form Merger	64
7.4	Proxy Statement	65
7.5	Commercially Reasonable Efforts to Complete	65
7.6	Access	67
7.7	Notification	67
7.8	Certain Litigation	69
7.9	Confidentiality	69
7.10	Public Disclosure	69
7.11	Company Options; Company ESPP	69
7.12	Employee Matters	73
7.13	Directors and Officers Indemnification and Insurance	74
7.14	FIRPTA Certificate	76
7.15	Obligations of Merger Sub	77

ARTICLE VIII CONDITIONS TO THE MERGER		77

8.1	Conditions	77

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ARTICLE IX TERMINATION, AMENDMENT AND WAIVER		77

9.1	Termination Prior to Appointment Time	77
9.2	Termination Before or After Appointment Time and Prior to Effective Time	80
9.3	Notice of Termination; Effect of Termination	81
9.4	Fees and Expenses	81
9.5	Amendment	83
9.6	Extension; Waiver	83

ARTICLE X GENERAL PROVISIONS		83

10.1	Survival of Representations, Warranties and Covenants	83
10.2	Notices	83
10.3	Assignment	85
10.4	Entire Agreement	85
10.5	Third Party Beneficiaries	85
10.6	Severability	85
10.7	Other Remedies	86
10.8	Specific Performance	86
10.9	Governing Law	86
10.10	Consent to Jurisdiction	86
10.11	WAIVER OF JURY TRIAL	86
10.12	Counterparts	86

CONDITIONS TO THE OFFER		A-1

-iii-

INDEX OF ANNEXES

Annex A Conditions to the Offer

INDEX OF EXHIBITS

Exhibit A Form of Tender and Voting Agreement

-iv-

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this Agreement) is made and entered into as of July 25, 2006 by and among Hewlett-Packard Company, a Delaware corporation (Parent), Mars Landing Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Sub), and Mercury Interactive Corporation, a Delaware corporation (the Company). All capitalized terms used in this Agreement shall have the respective meanings ascribed thereto in Article I hereof.

W I T N E S S E T H:

WHEREAS, it is proposed that Merger Sub shall, as promptly as practicable, commence a tender offer (the Offer) to acquire all of the outstanding shares (the Company Shares) of Company Common Stock, at a price of Fifty-Two Dollars ($52.00) per Company Share, net to the holder thereof in cash (such amount, or any different amount per Company Share that may be paid pursuant to the Offer, being hereinafter referred to as the Offer Price), all upon the terms and subject to the conditions set forth herein.

WHEREAS, it is also proposed that, following the consummation of the Offer, Merger Sub will merge with and into the Company and each Company Share that is not tendered and accepted pursuant to the Offer will thereupon be cancelled and converted into the right to receive cash in an amount equal to the Offer Price, all upon the terms and subject to the conditions set forth herein.

WHEREAS, each of the Boards of Directors of Parent and Merger Sub, as well as the Company Board, has (i) determined that this Agreement is advisable, (ii) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, taken together, are at a price and on terms that are fair to and in the best interests of their respective stockholders and (iii) approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger, all upon the terms and subject to the conditions set forth herein.

WHEREAS, concurrently with the execution and delivery of this Agreement, as a condition and inducement to the willingness of Parent and Merger Sub to enter into this Agreement, each of the directors and executive officers of the Company, in their respective capacities as stockholders of the Company, have entered into Tender and Voting Agreements with Parent substantially in the form attached hereto as Exhibit A (each, a Tender and Voting Agreement and collectively, the Tender and Voting Agreements).

NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE I

DEFINITIONS & INTERPRETATIONS

1.1 Certain Definitions. For all purposes of and under this Agreement, the following capitalized terms shall have the following respective meanings:

(a) Acquisition Proposal shall mean any offer or proposal (other than an offer or proposal by Parent or Merger Sub) relating to any Acquisition Transaction.

(b) Acquisition Transaction shall mean any transaction or series of related transactions (other than the transactions contemplated by this Agreement) involving: (i) any acquisition or purchase from the Company or any of its Subsidiaries by any Person or group (as defined in or under Section 13(d) of the Exchange Act), directly or indirectly, of more than a fifteen percent (15%) interest in the total outstanding voting securities of the Company or any of its Subsidiaries, or any tender offer or exchange offer that if consummated would result in any Person or group (as defined in or under Section 13(d) of the Exchange Act) beneficially owning fifteen percent (15%) or more of the total outstanding voting securities of the Company or any of its Subsidiaries; (ii) any merger, consolidation, business combination or other similar transaction involving the Company or any of its Subsidiaries pursuant to which the stockholders of the Company immediately preceding such transaction hold less than eighty-five percent (85%) of the equity interests in the surviving or resulting entity of such transaction; (iii) 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 more than fifteen percent (15%) of the assets of the Company or fifteen percent (15%) of the assets of one or more of the Companys Subsidiaries that, individually or in the aggregate, would qualify as a significant subsidiary of the Company within the meaning of Rule 1-02(w) of Regulation S-X promulgated by the SEC (in each case measured by the lesser of book or fair market value thereof); (iv) any liquidation, dissolution, recapitalization or other significant corporate reorganization of the Company or any of its Subsidiaries; or (v) any combination of the foregoing.

(c) Affiliate shall mean, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person. For purposes of the immediately preceding sentence, the term control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

(d) Associate shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange Act.

(e) Business Day shall mean any day, other than a Saturday, Sunday and any day which is a legal holiday under the laws of the State of California or New York or is a day on which banking institutions located in such States are authorized or required by law or other governmental action to close.

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