Exhibit 2.01
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement") is made as
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of October 1, 1999 by and between Interwoven, Inc., a California corporation
("Interwoven (CA)"), and Interwoven, Inc., a Delaware corporation ("Interwoven
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(DE)"). Interwoven (CA) and Interwoven (DE) are hereinafter sometimes
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collectively referred to as the "Constituent Corporations."
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R E C I T A L S
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A. Interwoven (CA) was incorporated on March 1, 1995. Its current
authorized capital stock consists of: (1) 40,000,000 shares of Common Stock, no
par value ("Interwoven (CA) Common Stock"), of which 9,864,855 shares are issued
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and outstanding; and (2) 25,000,000 shares of Preferred Stock, no par value
("Interwoven (CA) Preferred Stock") of which (i) 1,120,000 shares of Series A
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Preferred Stock, (ii) 3,039,505 shares of Series B Preferred Stock, (iii)
7,159,743 shares of Series C Preferred Stock, (iv) 3,741,217 shares of Series D
Preferred Stock and (iv) 3,483,058 shares of Series E Preferred Stock are issued
and outstanding.
B. Interwoven (DE) was incorporated on July 22, 1999. Its authorized
capital stock consists of: (1) 75,000,000 shares of Common Stock, with a par
value of $0.001 per share ("Interwoven (DE) Common Stock"), of which 1,000
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shares are issued and outstanding; and (2) 25,000,000 shares of Preferred Stock,
$0.001 par value ("Interwoven (DE) Preferred Stock"), none of which shares are
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issued and outstanding.
C. The respective Boards of Directors of Interwoven (CA) and
Interwoven (DE) deem it advisable and to the advantage of each of the
Constituent Corporations that Interwoven (CA) merge with and into Interwoven
(DE) upon the terms and subject to the conditions set forth in this Merger
Agreement for the purpose of effecting a change of the state of incorporation of
Interwoven (CA) from California to Delaware.
D. The Boards of Directors of each of the Constituent Corporations
have approved this Merger Agreement.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
set forth in this Merger Agreement and do hereby agree that Interwoven (CA)
shall merge with and into Interwoven (DE) on the following terms, conditions and
other provisions:
1. Merger and Effective Time. At the Effective Time (as defined
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below), Interwoven (CA) shall be merged with and into Interwoven (DE) (the
"Merger"), and Interwoven (DE) shall be the surviving corporation of the Merger
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(the "Surviving Corporation"). The Merger shall become effective upon the close
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of business on the date when a duly executed copy of this Merger Agreement,
along with all required officers' certificates, is filed with the Secretary of
State of the State of Delaware, (the "Effective Time").
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2. Effect of Merger. At the Effective Time, the separate corporate
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existence of Interwoven (CA) shall cease; the corporate identity, existence,
powers, rights and immunities
of Interwoven (DE) as the Surviving Corporation shall continue unimpaired by
the Merger; and Interwoven (DE) shall succeed to and shall possess all the
assets, properties, rights, privileges, powers, franchises, immunities and
purposes, and be subject to all the debts, liabilities, obligations,
restrictions and duties of Interwoven (CA), all without further act or deed.
3. Governing Documents. At the Effective Time, the Certificate of
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Incorporation of Interwoven (DE) in effect immediately prior to the Effective
Time shall become the Certificate of Incorporation of the Surviving Corporation
and the Bylaws of Interwoven (DE) in effect immediately prior to the Effective
Time shall become the Bylaws of the Surviving Corporation.
4. Directors and Officers. At the Effective Time, the directors and
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officers of Interwoven (DE) shall be and become the directors and officers
(holding the same titles and positions) of the Surviving Corporation and after
the Effective Time shall serve in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
5. Conversion of Shares of Interwoven (CA). Subject to the terms and
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conditions of this Agreement, at the Effective Time, each share of Interwoven
(CA) Common Stock outstanding immediately prior thereto shall be automatically
changed and converted into two-thirds (2/3) of a fully paid and nonassessable,
issued and outstanding share of Interwoven (DE) Common Stock. At the Effective
Time: each share of Interwoven (CA) Series A Preferred Stock outstanding
immediately prior thereto shall be automatically changed and converted into one
fully paid and non-assessable, issued and outstanding share of Interwoven (DE)
Series A Preferred Stock; each share of Interwoven (CA) Series B Preferred Stock
outstanding immediately prior thereto shall be automatically changed and
converted into one fully paid and non-assessable, issued and outstanding share
of Interwoven (DE) Series B Preferred Stock; each share of Interwoven (CA)
Series C Preferred Stock outstanding immediately prior thereto shall be
automatically changed and converted into one fully paid and non-assessable,
issued and outstanding share of Interwoven (DE) Series C Preferred Stock; each
share of Interwoven (CA) Series D Preferred Stock outstanding immediately prior
thereto shall be automatically changed and converted into one fully paid and
non-assessable, issued and outstanding share of Interwoven (DE) Series D
Preferred Stock; each share of Interwoven (CA) Series E Preferred Stock
outstanding immediately prior thereto shall be automatically changed and
converted into one fully paid and non-assessable, issued and outstanding share
of Interwoven (DE) Series E Preferred Stock.
6. Cancellation of Shares of Interwoven (DE). At the Effective Time,
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all of the previously issued and outstanding shares of Interwoven (DE) Common
Stock that were issued and outstanding immediately prior to the Effective Time
shall be automatically eliminated and canceled.
7. Stock Certificates. At and after the Effective Time, all of the
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outstanding certificates that, prior to that date, represented shares of
Interwoven (CA) Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of Interwoven (DE) Common
Stock into which such shares of Interwoven (CA) Common Stock are converted as
provided herein. The registered owner on the books and records of Interwoven
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(CA) of any such outstanding stock certificate for Interwoven (CA) Common Stock
shall, until such certificate shall have been surrendered for transfer or
otherwise accounted for to Interwoven (DE) or its transfer agent, be entitled to
exercise any voting and other rights with respect to, and to receive any
dividend and other distributions upon, the shares of Interwoven (DE) Common
Stock evidenced by such outstanding certificate as above provided.
8. Conversion of Options and Warrants. At the Effective Time, all
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outstanding and unexercised portions of all options to purchase a share of
Interwoven (CA) Common Stock under the (i) Interwoven (CA) 1996 Stock Option
Plan, (ii) Interwoven (CA) 1998 Stock Option Plan, shall become options to
purchase two-thirds (2/3) the number of shares of Interwoven (DE) Common Stock
(subject to the elimination of fractional shares as provided in Section 9 below)
at an exercise price per share equal to 150% of the exercise price per share of
the option to purchase Interwoven (CA) Common Stock and shall, to the extent
permitted by law and otherwise reasonably practicable, have the same term,
exercisability, vesting schedule, status as an "incentive stock option" under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), if
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applicable, and all other material terms and conditions (including but not
limited to the terms and conditions applicable to such options by virtue of the
Interwoven (CA) Stock Plans). Continuous employment with Interwoven (CA) will
be credited to an optionee for purposes of determining the vesting of the number
of shares of Interwoven (DE) Common Stock under a converted Interwoven (CA)
option at the Effective Time. Additionally, at the Effective Time, Interwoven
(DE) shall adopt and assume the Interwoven (CA) Stock Plans. At the Effective
Time, all outstanding and unexercised portions of all warrants to purchase or
acquire Interwoven (CA) Preferred Stock shall become warrants to purchase or
acquire, on the same terms and conditions, the same number of shares of the same
series of Interwoven (DE) Preferred Stock.
9. Fractional Shares. No fractional shares of Interwoven (DE) Common
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Stock or Preferred Stock will be issued in connection with the Merger. In lieu
thereof, Interwoven (DE) shall pay each shareholder of Interwoven (CA) who would
otherwise be entitled to receive a fractional share of Interwoven Common Stock
or Preferred Stock (assuming the aggregation of all shares held by the same
holder of more than one stock certificate representing shares of Interwoven (CA)
Common Stock or Preferred Stock, as the case may be) a cash amount equal to the
applicable fraction multiplied by the fair market value (the "Fair Market
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Value") of a share of Interwoven (DE) Common Stock or Preferred Stock, as the
case may be. Fair Market Value means, as of any date, the value of one share of
Interwoven (DE) Common Stock determined by the Board of Directors of Interwoven
(DE) in good faith (the "Fair Market Value Per Share").
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Upon exercise of each assumed option of Interwoven (CA) to purchase
Interwoven (DE) Common Stock, cash will be paid by Interwoven (DE) in lieu of
any fractional share of Interwoven (DE) Common Stock, respectively, issuable
upon exercise of such option, and the amount of cash received for such
fractional share shall be the Fair Market Value Per Share upon exercise thereof
multiplied by the applicable fraction, less the unpaid exercise price per share
for such fraction.
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10. Employee Benefit Plans. At the Effective Time, the obligations
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of Interwoven (CA) under or with respect to every plan, trust, program and
benefit then in effect or administered by Interwoven (CA) for the benefit of the
directors, officers and employees of Interwoven (CA) or any of its subsidiaries
shall become the lawful obligations of Interwoven (DE) and shall be implemented
and administered in the same manner and without interruption until the same are
amended or otherwise lawfully altered or terminated. Effective at the Effective
Time, Interwoven (DE) hereby expressly adopts and assumes all obligations of
Interwoven (CA) under such employee benefit plans.
11. Further Assurances. From time to time, as and when required by
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the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of Interwoven (CA) such deeds, assignments and
other instruments, and there shall be taken or caused to be taken by it all such
further action as shall be appropriate, advisable or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Interwoven (CA), and otherwise
to carry out the purposes of this Merger Agreement. The officers and directors
of the Surviving Corporation are fully authorized in the name of and on behalf
of Interwoven (CA), or otherwise, to take any and all such actions and to
execute and deliver any and all such deeds and other instruments as may be
necessary or appropriate to accomplish the foregoing.
12. Condition. The consummation of the Merger is subject to the
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approval of this Merger Agreement and the Merger contemplated hereby by the
shareholders of Interwoven (CA) and the sole stockholder of Interwoven (DE),
prior to the Effective Time.
13. Abandonment. At any time before the Effective Time, this Merger
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Agreement may be terminated and the Merger abandoned by the Board of Directors
of Interwoven (CA) or Interwoven (DE), notwithstanding approval of this Merger
Agreement by the shareholders of Interwoven (CA) and the sole stockholder of
Interwoven (DE).
14. Amendment. At any time before the Effective Time, this Merger
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Agreement may be amended, modified or supplemented by the Board of Directors of
the Constituent Corporations, notwithstanding the approval of this Merger
Agreement by the shareholders of Interwoven (CA) and the sole stockholder of
Interwoven (DE); provided, however, that any amendment made subsequent to the
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adoption of this Agreement by the Shareholders of Interwoven (CA) or the sole
Stockholder of Interwoven (DE) shall not: (i) alter or change the amount or kind
of shares, securities, cash property and/or rights to be received in exchange
for or upon conversion of any shares of any class or series of Interwoven (CA);
(ii) alter or change any of the terms or conditions of this Merger Agreement if
such alteration or change would adversely affect the holders of any shares of
any class or series of Interwoven (CA) or Interwoven (DE).
15. Tax-Free Reorganization. The Merger is intended to be a tax-free
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plan of reorganization within the meaning of Section 368(a)(1)(F) of the Code.
16. Governing Law. This Agreement shall be governed by and construed
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under the internal laws of the State of California as applied to agreements
among California
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residents entered into and to be performed entirely within California, without
reference to the principles of conflicts of law or choice of laws, except to
the extent that the laws of the State of Delaware would apply in matters
relating to the internal affairs of Interwoven (DE) and the Merger.
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17. Counterparts. In order to facilitate the filing and recording of
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this Merger Agreement, it may be executed in any number of counterparts, each of
which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf
of each of the Constituent Corporations and attested by their respective
officers hereunto duly authorized.
Interwoven, Inc. Interwoven, Inc.
a California corporation a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
President and Chief President and Chief
Executive Officer Executive Officer
ATTEST: ATTEST:
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By: /s/ Xxxx X. Xxx By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx Xxxx X. Xxx
Secretary Secretary
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
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