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Published: 2008-03-26

Agreement and Plan of Reorganization - Novell Inc. and WordPerfect Corp.



                                  AMENDMENT TO
                      AGREEMENT AND PLAN OF REORGANIZATION
 
     THIS AMENDMENT (the "Amendment") to that certain Agreement and Plan of
Reorganization, dated as of March 21, 1994 (the "Agreement"), by and among
Novell, Inc., a Delaware corporation ("Novell"), Novell Acquisition Corp., a
Delaware corporation and wholly owned subsidiary of Novell ("Sub"), and
WordPerfect Corporation, a Utah corporation ("WordPerfect"), and for purposes of
Section 5.3 of the Agreement only, Alan C. Ashton ("Ashton"), Bruce W. Bastian
("Mr. Bastian") and Melanie L. Bastian ("Ms. Bastian"), is entered into as of
the 31st day of May, 1994 by the parties to the Agreement. All capitalized terms
used in this Amendment shall have the same meanings set forth for them in the
Agreement, unless otherwise defined in this Amendment.
 
                                    RECITALS
 
     WHEREAS, Novell, Sub, WordPerfect, Ashton, Mr. Bastian and Ms. Bastian
entered into the Agreement providing for the combination of Novell and
WordPerfect (together, the "Combined Company") by means of the merger of Sub
with and into WordPerfect, pursuant to which WordPerfect would become a wholly
owned subsidiary of Novell; and
 
     WHEREAS, the parties have determined that it is in their best interests
that the combination of Novell and WordPerfect be effected by a merger of
WordPerfect directly into Novell;
 
     NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree
as follows:
 
     1. Merger Agreement.  The Agreement is hereby amended as set forth below:
 
     (a) All references in the Agreement to "Novell and Sub" shall be deemed to
be references to "Novell"; all references to "each of Novell and Sub" shall be
deemed references to "Novell" only; all references to "Novell or Sub" shall be
deemed to be references to "Novell" only; and all other references to Sub shall
be deemed deleted. Furthermore, all language indicating the separate existence
of Novell and Sub, such as "as the case may be," or attribution to two separate
entities, such as "respectively," shall be similarly deemed deleted along with
any punctuation with respect thereto.
 
     (b) The first paragraph of Section 1.1 of the Agreement is amended to read
in its entirety as follows:
 
          1.1 Merger; Effective Time.  Subject to the terms and conditions of
     this Agreement and of the Articles of Merger attached as Exhibit 1.1 (the
     "Articles of Merger"), WordPerfect will be merged with and into Novell (the
     "Merger") in accordance with the Utah Revised Business Corporation Act (the
     "URBCA"). The Articles of Merger provide, among other things, the mode of
     effecting the Merger and the manner and basis of converting each issued and
     outstanding share of capital stock of WordPerfect into shares of Common
     Stock of Novell ("Novell Common Stock").
 
     (c) Section 1.3 of the Agreement is amended to read in its entirety as
follows:
 
          1.3 Effects of the Merger.  At the Effective Time, (i) the separate
     existence of WordPerfect shall cease and WordPerfect shall be merged with
     and into Novell (WordPerfect and Novell are sometimes referred to as the
     "Constituent Corporations" and Novell after the Merger is sometimes
     referred to as the "Surviving Corporation"), (ii) the Articles of
     Incorporation of Novell shall be the Articles of Incorporation of the
     Surviving Corporation, (iii) the Bylaws of Novell shall be the Bylaws of
     the Surviving Corporation and (iv) the directors of Novell shall be the
     directors of the Surviving Corporation, (v) the officers of Novell shall be
     the officers of the Surviving Corporation, and (vi) the Merger shall, from
     and after the Effective Time, have all the effects provided by applicable
     law, this Agreement and the Articles of Merger.
 
     (d) Section 2.1(a) of the Agreement is deleted in its entirety.
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     (e) Section 2.2(a) of the Agreement is amended to read in its entirety as
follows:
 
          (a) Exchange Agent.  Novell shall act as exchange agent (the "Exchange
     Agent") in the Merger.
 
     (f) Sections 4.1, 4.2 and 4.3 of the Agreement are amended to read in their
entirety as follows:
 
          4.1 Organization; Standing and Power.  Novell is a corporation validly
     existing and in good standing under the laws of its state of incorporation
     and has all requisite corporate power and authority to own, lease and
     operate its properties and to carry on its businesses as now being
     conducted. Novell has delivered to WordPerfect complete and correct copies
     of the Certificate of Incorporation and Bylaws of Novell as amended to the
     date hereof.
 
          4.2 Capital Structure.  As of the date hereof the authorized capital
     stock of Novell consists of 400,000,000 shares of Novell Common Stock, $.10
     par value and 500,000 shares of Novell Preferred Stock, $.10 par value. At
     the close of business on January 29, 1994, 309,021,297 shares of Novell
     Common Stock were outstanding, 27,978,621 shares of Novell Common Stock
     were reserved for issuance upon the exercise of outstanding stock options
     ("Novell Options"), no shares of Novell Common Stock were held by Novell in
     its treasury, and no shares of Novell Preferred Stock were outstanding. All
     the outstanding shares of Novell Common Stock are validly issued, fully
     paid, nonassessable and free of preemptive rights except pursuant to rights
     issued under Novell's Stockholder Rights Plan. The shares of Novell Common
     Stock issuable in connection with the Merger are duly authorized and
     reserved for issuance and, when issued in accordance with the terms of this
     Agreement and the Articles of Merger, will be validly issued, fully paid,
     nonassessable and free of preemptive rights (other than any rights which
     may be issued pursuant to Novell's Stockholder Rights Plan). Except for the
     shares listed above issuable pursuant to Novell Options, there are not any
     options, warrants, calls, conversion rights, commitments or agreements of
     any character to which Novell or any Subsidiary of Novell is a party or by
     which any of them may be bound obligating Novell or any Subsidiary of
     Novell to issue, deliver or sell, or cause to be issued, delivered or sold,
     additional shares of the capital stock of Novell or of any Subsidiary of
     Novell or obligating Novell or any Subsidiary of Novell to grant, extend or
     enter into any such option, warrant, call, conversion right, commitment or
     agreement.
 
   
          4.3 Authority.  Novell has all requisite corporate power and authority
     to enter into this Agreement and the Articles of Merger, subject to any
     required stockholder approval, to consummate the transactions contemplated
     hereby and by the Articles of Merger. The execution and delivery by Novell
     of this Agreement and the Articles of Merger and the consummation of the
     transactions contemplated hereby and thereby have been duly authorized by
     all necessary corporate action on the part of Novell. This Agreement and
     the Articles of Merger have been duly executed and delivered by Novell and
     constitute valid and binding obligations of Novell enforceable in
     accordance with their terms, except as enforcement may be limited by
     bankruptcy, insolvency, or other similar laws affecting the enforcement of
     creditors' rights generally and except that the availability of equitable
     remedies is subject to the discretion of the court before which any
     proceeding therefor may be brought. Subject to satisfaction of the
     conditions set forth in Article VI, the execution and delivery of this
     Agreement and the Articles of Merger and the consummation of the
     transactions contemplated hereby and thereby will not conflict with or
     result in any violation of any material statute, law, rule, regulation,
     judgment, order, decree or ordinance applicable to Novell or any Subsidiary
     of Novell or their respective properties or assets, or conflict with or
     result in any breach or default (with or without notice or lapse of time,
     or both) under, or give rise to a right of termination, cancellation or
     acceleration of any obligation or to loss of a material benefit, under (i)
     any provision of the Certificate of Incorporation or Bylaws of Novell or
     any of its Subsidiaries or (ii) any material agreement, contract, note,
     mortgage, indenture, lease, instrument, permit, concession, franchise or
     license to which Novell or any of its Subsidiaries is a party or by which
     Novell or any of its Subsidiaries or their respective properties or assets
     may be bound or affected. No consent, approval, order or authorization of,
     or registration, declaration or filing with, any Governmental Entity is
     required by or with respect to Novell in connection with the execution and
     delivery of this Agreement and the Articles of Merger or the consummation
     by Novell of the transactions contemplated hereby or thereby, except for
     (i) the filing of a premerger notification report by Novell under the HSR
    
     Act, (ii) the filing of the S-4
 
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         and such other documents with, and the obtaining of such orders from,
         the SEC and various state securities or "blue sky" authorities, and the
         making of such reports under the Exchange Act, as are required in
         connection with the transactions contemplated by this Agreement, (iii)
         the filing of the Articles of Merger with the Utah Division of
         Corporations and Commercial Code and the Secretary of State of the
         State of Delaware and appropriate documents with the relevant
         authorities of other states in which Novell is qualified to do
         business, (iv) such consents, approvals, orders, authorizations,
         registrations, declarations and filings as may be required under the
         laws of any foreign country which if not obtained or made would not
         have a Material Adverse Effect and (v) such other consents,
         authorizations, filings, approvals and registrations which if not
         obtained or made would not have a Material Adverse Effect.
 
     (g) Section 5.14 of the Agreement is amended to read in its entirety as
follows:
 
          5.14 Indemnification.  From and after the Effective Time, Novell shall
     (to the fullest extent permitted by applicable law) indemnify, defend and
     hold harmless each person who is now, or has been at any time prior to the
     date hereof or who becomes prior to the Effective Time, an officer or
     director of WordPerfect or any of its Subsidiaries (the "Indemnified
     Parties") against any and all losses, damages, costs, expenses, liabilities
     or judgments, or amounts that are paid in settlement of, or in connection
     with, any claim, action, suit, proceeding or investigation based on or
     arising out of the fact that such person is or was a director or officer of
     WordPerfect or any Subsidiary of WordPerfect, whether pertaining to any
     matter existing or occurring at or prior to the Effective Time
     ("Indemnified Liabilities"). Without limiting the foregoing, in the event
     any such claim, action, suit, proceeding or investigation is brought
     against any Indemnified Party (whether arising before or after the
     Effective Time), (i) any counsel retained by the Indemnified Parties for
     any period after the Effective Time shall be reasonably satisfactory to
     Novell (ii) after the Effective Time, Novell shall pay all reasonable fees
     and expenses of counsel for the Indemnified Parties promptly as statements
     therefor are received; and (iii) after the Effective Time, Novell shall use
     all reasonable efforts to assist in the defense of any such matter,
     provided that Novell shall not be liable for any settlement of any claim
     effected without its written consent, which consent, however, shall not be
     unreasonably withheld. Any Indemnified Party wishing to claim
     indemnification under this Section upon learning of any such claim, action,
     suit, proceeding or investigation, shall notify Novell (but the failure so
     to notify Novell shall not relieve it from any liability which it may have
     under this Section except to the extent such failure materially prejudices
     Novell). The Indemnified Parties as a group may retain only one law firm to
     represent them with respect to each such matter unless there is, under
     applicable standards of professional conduct, a potential conflict on any
     issue between the positions of any two or more Indemnified Parties.
 
     (h) Section 6.2(i) of the Agreement is deleted in its entirety.
 
     2. Mutual Covenant.  The parties hereto shall take all steps necessary to
effectuate the intent of this Amendment, and shall use all reasonable efforts to
effect such steps, including but not limited to the assignment of contracts,
that may be necessary or desirable to effect the intent of this Amendment prior
to the Closing.
 
     3. Sub No Longer a Party to the Agreement.  After the date hereof, the
parties acknowledge and agree that Sub is no longer a party to the Agreement,
and all rights and obligations with respect to Sub contained in the Agreement
shall be extinguished without in any way affecting the rights and obligations of
the other parties thereto. All of the terms of the Agreement shall remain
unchanged and in full force and effect. In the event of any inconsistency
between the Agreement and this Amendment, this Amendment shall govern.
 
     4. Effectiveness.  This Amendment in its entirety shall be effective upon
its execution by Novell, WordPerfect, Sub, Ashton, Mr. Bastian and Ms. Bastian.
 
     5. Miscellaneous.
 
     (a) Governing Law.  This Amendment shall be governed in all respects by the
internal laws of the State of Delaware (without giving effect to is choice of
law principles).
 
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     (b) Counterparts.  This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which,
together, shall constitute one and the same instrument.
 
     (c) Successors and Assigns.  Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
 
   
     (d) Entire Agreement.  The Agreement, as amended hereby, constitutes the
full and entire understanding and agreement among the parties with full regard
to the subjects hereof.
    
 
     (e) Titles and Subtitles.  The titles and subtitles used in this Amendment
are for convenience only and are not to be considered in construing or
interpreting this Amendment.
 
     IN WITNESS WHEREOF, Novell, Sub and WordPerfect have caused this Amendment
to be signed by their respective officers thereunto duly authorized, and Ashton,
Mr. Bastian and Ms. Bastian have signed this Agreement, all as of the date first
written above.
 
                                          NOVELL, INC.
 
                                          By:
                                              James R. Tolonen, Chief Financial
                                              Officer
 
                                          WORDPERFECT CORPORATION
 
                                          By:
                                              R. Duff Thompson, Executive
                                              Vice-President
 
                                          NOVELL ACQUISITION CORP.
 
                                          By:
                                              James R. Tolonen, President
 
                                             Alan C. Ashton
 
                                             Bruce W. Bastian
 
                                             Melanie L. Bastian
 
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