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Title: |
Agreement and Plan of Merger |
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Entities: |
Midnet Inc; Motorola, Inc.; Netopia Inc.; Silicon Valley Bank |
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Date: |
2006 |
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Size: |
Preview shows 50KB of 275KB total |
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Price: |
$99 |
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ID: |
#2620833 |
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Start of Preview |
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EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
Among
MOTOROLA, INC.,
MOTOROLA GTG SUBSIDIARY IV CORP.
and
NETOPIA, INC.
Dated as of November 13, 2006
TABLE OF CONTENTS
| ARTICLE I | THE MERGER | 2 | ||
|
1.1 |
The Merger |
2 | ||
|
1.2 |
Effective Time; Closing |
2 | ||
|
1.3 |
Effect of the Merger |
2 | ||
| ARTICLE II | CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE SURVIVING CORPORATION | 2 | ||
|
2.1 |
The Certificate of Incorporation |
2 | ||
|
2.2 |
The By-Laws |
2 | ||
| ARTICLE III | OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION | 3 | ||
|
3.1 |
Directors |
3 | ||
|
3.2 |
Officers |
3 | ||
| ARTICLE IV | CONVERSION OF SECURITIES | 3 | ||
|
4.1 |
Conversion of Capital Stock |
3 | ||
|
4.2 |
Exchange of Certificates |
4 | ||
|
4.3 |
Company Options |
6 | ||
|
4.4 |
Employee Stock Purchase Plan |
7 | ||
|
4.5 |
Actions by the Company |
8 | ||
|
4.6 |
Dissenting Shares |
8 | ||
| ARTICLE V | REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 9 | ||
|
5.1 |
Organization and Qualification; Subsidiaries |
9 | ||
|
5.2 |
Capital Structure |
11 | ||
|
5.3 |
Corporate Authority; Approval and Fairness |
14 | ||
|
5.4 |
Governmental Filings; No Violations; Certain Contracts, Etc. |
15 | ||
|
5.5 |
Contracts |
16 | ||
|
5.6 |
SEC Filings; Financial Statements; Information Provided |
19 | ||
|
5.7 |
Absence of Certain Changes |
22 | ||
|
5.8 |
Litigation and Liabilities |
23 | ||
|
5.9 |
Employee Benefits |
23 | ||
|
5.10 |
Compliance with Laws; Permits |
27 | ||
|
5.11 |
Environmental Matters |
27 | ||
|
5.12 |
Taxes |
29 | ||
|
5.13 |
Employees; Independent Contractors |
30 | ||
|
5.14 |
Insurance |
32 | ||
|
5.15 |
Intellectual Property |
32 | ||
|
5.16 |
Owned and Leased Properties |
37 | ||
i
|
5.17 |
Government Contracts |
40 | ||
|
5.18 |
Import and Export Control Laws |
41 | ||
|
5.19 |
Foreign Corrupt Practices Act |
42 | ||
|
5.20 |
Consent Decrees |
42 | ||
|
5.21 |
Product Liability and Recalls |
43 | ||
|
5.22 |
Takeover Statutes |
43 | ||
|
5.23 |
Change of Control |
43 | ||
|
5.24 |
Vote Required |
43 | ||
|
5.25 |
Brokers and Finders |
44 | ||
| ARTICLE VI | REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 44 | ||
|
6.1 |
Organization, Good Standing and Qualification |
44 | ||
|
6.2 |
Authority; No Conflict; Required Filings and Consents |
44 | ||
|
6.3 |
Information Provided |
46 | ||
|
6.4 |
Operations of Merger Sub |
46 | ||
|
6.5 |
Financing |
46 | ||
| ARTICLE VII | COVENANTS | 46 | ||
|
7.1 |
Interim Operations |
46 | ||
|
7.2 |
No Solicitation |
49 | ||
|
7.3 |
Proxy Statement |
53 | ||
|
7.4 |
Listing |
54 | ||
|
7.5 |
Company Meeting |
54 | ||
|
7.6 |
Filings; Other Actions; Notification |
54 | ||
|
7.7 |
Access |
56 | ||
|
7.8 |
Notice of Certain Matters |
57 | ||
|
7.9 |
De-listing |
57 | ||
|
7.10 |
Publicity |
57 | ||
|
7.11 |
Company and Parent Benefit Plans |
58 | ||
|
7.12 |
Loans to Company Employees, Officers and Directors |
58 | ||
|
7.13 |
Indemnification; Directors and Officers Insurance |
58 | ||
|
7.14 |
Takeover Statute |
60 | ||
|
7.15 |
Section 16 Matters |
60 | ||
| ARTICLE VIII | CONDITIONS | 60 | ||
|
8.1 |
Conditions to Each Partys Obligation to Effect the Merger |
60 | ||
|
8.2 |
Conditions to Obligations of Parent and Merger Sub |
61 | ||
|
8.3 |
Conditions to Obligation of the Company |
63 | ||
| ARTICLE IX | TERMINATION | 64 | ||
|
9.1 |
Termination by Mutual Consent |
64 | ||
|
9.2 |
Termination by Either Parent or the Company |
64 | ||
|
9.3 |
Termination by the Company |
64 | ||
ii
|
9.4 |
Termination by Parent |
65 | ||
|
9.5 |
Effect of Termination and Abandonment |
66 | ||
| ARTICLE X | MISCELLANEOUS AND GENERAL | 68 | ||
|
10.1 |
Survival |
68 | ||
|
10.2 |
Modification or Amendment |
68 | ||
|
10.3 |
Waiver of Conditions |
68 | ||
|
10.4 |
Counterparts |
68 | ||
|
10.5 |
GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL |
68 | ||
|
10.6 |
Notices |
70 | ||
|
10.7 |
Entire Agreement |
71 | ||
|
10.8 |
No Third Party Beneficiaries |
71 | ||
|
10.9 |
Obligations of Parent and of the Company |
71 | ||
|
10.10 |
Definitions |
71 | ||
|
10.11 |
Severability |
71 | ||
|
10.12 |
Interpretation; Construction |
71 | ||
|
10.13 |
Assignment |
72 | ||
|
10.14 |
Expenses |
72 | ||
iii
DEFINED TERMS
|
Term |
Section | |
|
1996 ESPP |
5.2(a) | |
|
2005 ESPP |
4.4 | |
|
Actions |
5.8(a) | |
|
Adverse Recommendation Notice |
7.2(c) | |
|
Affiliate |
5.2(d) | |
|
Agreement |
Preamble | |
|
Alternative Acquisition Agreement |
|
End of Preview |
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