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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Citrix Systems, Inc.; Bingham McCutchen

Date:

2006

Size:

Preview shows 48KB of 252KB total

Price:

$83

ID:

#2591628

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This Agreement and Plan of Merger (the Merger Agreement) contains representations and warranties that Orbital Data Corporation (Orbital) and Citrix Systems, Inc. (Citrix) made to each other. These representations and warranties were made only for the purposes of the Merger Agreement and solely for the benefit of Orbital and Citrix as of specific dates, may be subject to important limitations and qualifications agreed to by Orbital and Citrix and included in confidential disclosure schedules provided by Orbital to Citrix in connection with the signing of the Merger Agreement, and may not be complete. Furthermore, these representations and warranties may have been made for the purposes of allocating contractual risk between Orbital and Citrix instead of establishing these matters as facts, and may or may not have been accurate as of any specific date and do not purport to be accurate as of the date of the filing of the Merger Agreement by Citrix with the Securities and Exchange Commission. Accordingly, you should not rely upon the representations and warranties contained in the Merger Agreement as characterizations of the actual state of facts, since they were intended to be for the benefit of, and to be limited to, Citrix and Orbital.

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

CITRIX SYSTEMS, INC.

BANYAN ACQUISITION CORPORATION,

ORBITAL DATA CORPORATION

AND

THE STOCKHOLDER REPRESENTATIVE

Dated as of August 4, 2006


ARTICLE I DEFINITIONS			2

	1.1	Definitions	2

ARTICLE II THE MERGER			11

	2.1	The Merger	11
	2.2	Effective Time	11
	2.3	Effect of the Merger	11
	2.4	Certificate of Incorporation; By-laws	11
	2.5	Directors and Officers	12
	2.6	Merger Consideration; Effect on Company Capital Stock; Escrow; Adjustment	12
	2.7	Dissenting Shares	15
	2.8	Surrender of Certificates	16
	2.9	No Further Ownership Rights in Company Capital Stock	17
	2.10	Lost, Stolen or Destroyed Certificates	17
	2.11	Taking of Necessary Action; Further Action	17

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY			18

	3.1	Organization of the Company	18
	3.2	Subsidiaries	18
	3.3	Company Capital Structure	19
	3.4	Authority	21
	3.5	No Conflict	22
	3.6	Consents	22
	3.7	Company Financial Statements and Internal Controls	22
	3.8	No Undisclosed Liabilities	23
	3.9	Absence of Certain Changes	24
	3.10	Accounts Receivable	27
	3.11	Restrictions on Business Activities	27
	3.12	Title to Properties; Absence of Liens and Encumbrances	28
	3.13	Governmental Authorization	29
	3.14	Intellectual Property	29
	3.15	Product Warranties; Services	34
	3.16	Agreements, Contracts and Commitments	34
	3.17	Change of Control Payments to Employees	36
	3.18	Interested Party Transactions	37
	3.19	Compliance with Laws	37
	3.20	Litigation	37
	3.21	Insurance	37
	3.22	Minute Books and Records	38
	3.23	Environmental Matters	38
	3.24	Brokers and Finders Fees	39
	3.25	Employee Plans	39
	3.26	Employment Matters	41
	3.27	Foreign Corrupt Practices Act	44


	3.28	Bank Accounts	44
	3.29	Customers	44
	3.30	Representations Complete	44

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB			44

	4.1	Organization of Parent and Merger Sub	44
	4.2	Authority	45
	4.3	No Conflict	45

ARTICLE V CONDUCT PRIOR TO THE EFFECTIVE TIME			45

	5.1	Conduct of Business of the Company and its Subsidiaries	45

ARTICLE VI CERTAIN COVENANTS			47

	6.1	Access to Information	47
	6.2	Confidentiality	47
	6.3	Public Disclosure	47
	6.4	Consents	48
	6.5	Conditions to the Merger; Further Assurances	48
	6.6	Notification of Certain Matters	48
	6.7	Benefit Arrangements	48
	6.8	Indemnification of Directors and Officers of the Company	49
	6.9	Bonus Plan	50
	6.10	No Solicitation	50
	6.11	Resignation of Officers and Directors	51
	6.12	Employee Confidentiality and Non-Solicitation Agreements; Waiver of Change in Control Provisions	51
	6.13	Company Options	51
	6.14	Stockholder Approvals	52
	6.15	Termination of Investor Agreements	52
	6.16	Certain Deliveries	53
	6.17	Jibe Escrow	53

ARTICLE VII TAX MATTERS			53

	7.1	Tax Representations	53
	7.2	Tax Covenants	56

ARTICLE VIII CONDITIONS TO THE MERGER			57

	8.1	Conditions to Obligations of Each Party to Effect the Merger	57
	8.2	Additional Conditions to Obligations of the Company	57
	8.3	Additional Conditions to the Obligations of Parent and Merger Sub	58

ARTICLE IX SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION; LIMITATIONS			61

	9.1	Survival of Representations, Warranties and Covenants	61


	9.2	Indemnification	61
	9.3	Limitations	63
	9.4	Procedures	64
	9.5	Stockholder Representative; Power of Attorney	65
	9.6	No Subrogation	67
	9.7	Merger Consideration Adjustment	67

ARTICLE X TERMINATION, AMENDMENT AND WAIVER			67

	10.1	Termination	67
	10.2	Effect of Termination	68
	10.3	Amendment	68
	10.4	Extension; Waiver	68

ARTICLE XI GENERAL PROVISIONS			69

	11.1	Notices	69
	11.2	Construction	70
	11.3	Entire Agreement	70
	11.4	Severability	70
	11.5	Specific Performance	71
	11.6	Expenses	71
	11.7	Successors and Assigns; Assignment; Parties in Interest	71
	11.8	Waiver	71
	11.9	Governing Law; Venue	72
	11.10	Waiver of Jury Trial

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