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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