Preview | Agreement and Plan of Merger |

Document Preview

Agreement and Plan of Merger

Click "Add to Cart" button to purchase document.
Documents are emailed immediately after purchase.
You can also browse documents by title, category, or company... or click here for help finding documents.

Title:

Agreement and Plan of Merger

Entities:

Citibank, NA; Hewlett-Packard Co.; Kintana Inc.; Nasdaq Stock Market Inc.; Wilson Sonsini Goodrich & Rosati

Date:

2006

Size:

Preview shows 42KB of 291KB total

Price:

$83

ID:

#2267513

► Plans ► Agreements ► Agreements & Plans of Merger
► Miscellany ► Fortune 100
► Financial
► Financial ► Investment Services
► Technology ► Computer Peripherals
► Services ► Legal

Start of Preview

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			1
	1.1	Certain Definitions	1
	1.2	Additional Definitions	8
	1.3	Certain Interpretations	9
ARTICLE II THE OFFER			10
	2.1	The Offer	10
	2.2	Company Actions	12
	2.3	Company Board of Directors and Committees; Section 14(f) of Exchange Act	14
	2.4	50% Top-Up Option.	15
	2.5	90% Top-Up Option.	16
ARTICLE III THE MERGER			17
	3.1	The Merger	17
	3.2	The Effective Time	17
	3.3	The Closing	17
	3.4	Effect of the Merger	17
	3.5	Certificate of Incorporation and Bylaws	17
	3.6	Directors and Officers	18
	3.7	Effect on Capital Stock	18
	3.8	Exchange of Certificates	19
	3.9	No Further Ownership Rights in Company Common Stock	21
	3.10	Lost, Stolen or Destroyed Certificates	21
	3.11	Taking of Necessary Action; Further Action	21
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY			21
	4.1	Organization and Standing	22
	4.2	Subsidiaries	22
	4.3	Authorization	23
	4.4	Capitalization	23
	4.5	Non-contravention; Required Consents	24
	4.6	SEC Reports	24
	4.7	Financial Statements	25
	4.8	Schedule 14D-9; Proxy Statement; Offer Documents	26
	4.9	No Undisclosed Liabilities	27
	4.10	Absence of Certain Changes	27
	4.11	Material Contracts	28
	4.12	Compliance with Laws	30
	4.13	Permits	30
	4.14	Litigation	30
	4.15	Antitrust Matters	31
	4.16	Taxes	31
	4.17	Environmental Matters	33
	4.18	Employee Benefit Plans	34
	4.19	Labor Matters	36
	4.20	Real Property	37
	4.21	Assets; Personal Property	37
	4.22	Intellectual Property	37
	4.23	Insurance	40
	4.24	Related Party Transactions	41

	4.25	Vote Required	41
	4.26	Brokers	41
	4.27	Opinion of Financial Advisors	41
	4.28	State Anti-Takeover Statutes	41
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB			41
	5.1	Organization	41
	5.2	Authorization	42
	5.3	Non-contravention; Required Consents	42
	5.4	Offer Documents; Schedule 14D-9; Proxy Statement	43
	5.5	Litigation	43
	5.6	Ownership of Company Capital Stock	43
	5.7	Funds	43
ARTICLE VI INTERIM CONDUCT OF BUSINESS			43
	6.1	Affirmative Obligations of the Company	43
	6.2	Negative Obligations of the Company	44
ARTICLE VII ADDITIONAL AGREEMENTS			47
	7.1	No Solicitation	47
	7.2	Company Board Recommendation	48
	7.3	Company Stockholders' Meeting; Short-Form Merger	49
	7.4	Proxy Statement	50
	7.5	Commercially Reasonable Efforts to Complete	51
	7.6	Access	52
	7.7	Notification	52
	7.8	Certain Litigation	53
	7.9	Confidentiality	53
	7.10	Public Disclosure	54
	7.11	Company Options; Company ESPP	54
	7.12	Employee Matters	57
	7.13	Directors' and Officers' Indemnification and Insurance	58
	7.14	FIRPTA Certificate	60
	7.15	Obligations of Merger Sub	60
ARTICLE VIII CONDITIONS TO THE MERGER			60
	8.1	Conditions	60
ARTICLE IX TERMINATION, AMENDMENT AND WAIVER			60
	9.1	Termination Prior to Appointment Time	60
	9.2	Termination Before or After Appointment Time and Prior to Effective Time	63
	9.3	Notice of Termination; Effect of Termination	63
	9.4	Fees and Expenses	63
	9.5	Amendment	65
	9.6	Extension; Waiver	65
ARTICLE X GENERAL PROVISIONS			65
	10.1	Survival of Representations, Warranties and Covenants	65
	10.2	Notices	65
	10.3	Assignment	66
	10.4	Entire Agreement	66

iii

	10.5	Third Party Beneficiaries	66
	10.6	Severability	66
	10.7	Other Remedies	67
	10.8	Specific Performance	67
	10.9	Governing Law	67
	10.10	Consent to Jurisdiction	67
	10.11	WAIVER OF JURY TRIAL	67
	10.12	Counterparts	67
CONDITIONS TO THE OFFER			A-1

INDEX OF ANNEXES

Annex AConditions to the Offer

INDEX OF EXHIBITS

Exhibit AForm of Tender and Voting Agreement

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;

End of Preview

Home Intelligence Services Subscriptions News About Us