|
Exhibit 2.1
AMENDMENT NO. 2 TO MERGER
AGREEMENT
This Amendment No. 2 to
Agreement and Plan of Merger (this “Amendment”), dated
as of February 8, 2008, is entered into by and among Rocket
Software, Inc., a Delaware corporation (“Eastern”),
Eastern Software, Inc., a Delaware corporation and a direct
wholly-owned Subsidiary of Eastern (“Newco”), and
NetManage, Inc., a Delaware corporation (the
“Company”).
RECITALS
The parties hereto previously
entered into an Agreement and Plan of Merger dated as of
December 11, 2007, as amended (the “Merger
Agreement”) and wish to further amend certain provisions
thereof to extend the deadline for Eastern to arrange for
financing.
AGREEMENT
Now, therefore, for good and
valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. The last sentence of the introductory
paragraph to Section 4.1 is amended and restated as
follows:
Without limiting the
generality of the foregoing, and except as otherwise expressly
permitted in this Agreement, or as set forth in Section 4.1 of
the Company Disclosure Schedule, (A) the Company may (with one
business days notice to Eastern) take any of the actions set forth
in clauses 4.1(a) through 4.1(v) below prior to the Financing
Contingency Release Date and such action shall not require the
consent of Eastern and (B) during the period beginning on the
Financing Contingency Release Date to the Effective Time, neither
the Company nor any of its Subsidiaries will, without the prior
written consent of Eastern, which consent shall not be unreasonably
withheld or delayed:
2. Section 4.2 is amended and
restated as follows:
4.2 No Solicitation of
Transactions.
(a) During the period
beginning on the Financing Contingency Release Date to the
Effective Time the Company shall not, nor shall it permit any of
its Subsidiaries to, nor shall it authorize or permit any officer,
director or employee of, or any investment banker, attorney or
other advisor or representative of, the Company or any of its
Subsidiaries to (i) solicit, accept or initiate, encourage, or
facilitate, directly or indirectly, any inquiries relating to, or
the submission of, any proposal or offer, whether in writing or
otherwise, from any Person other than Eastern, Newco or any
Affiliates thereof (any such other Person, a “Third
Party”) to acquire beneficial ownership (as defined under
Rule 13(d) of the Exchange Act) of all or more than fifteen percent
(15%) of the assets of the Company and its Subsidiaries, taken
as a whole, or fifteen percent (15%) or more of any class or
series of equity securities of the Company, whether pursuant to a
merger,
consolidation or other
business combination or other transaction, sale of shares of stock,
sale of assets, tender offer, exchange offer or similar transaction
or series of related transactions, which is structured to permit
such Third Party to acquire beneficial ownership of more than
fifteen percent (15%) of the assets of the Company and its
Subsidiaries, taken as a whole, or fifteen percent (15%) or
more of any class or series of equity securities of the Company
(any transaction or series of transactions with the foregoing
effect, a “Competing Transaction”);
(ii) participate or engage in any discussions or negotiations
with any Third Party regarding any Competing Transaction, or
furnish to any Third Party any information or data with respect to
or access to the properties of the Company in connection with a
Competing Transaction, or take any other action to facilitate the
making of any proposal that constitutes, or may reasonably be
expected to lead to, any Competing Transaction;
(iii) withdraw, modify or amend in any way adverse to Eastern
or Newco its recommendation to the Company’s stockholders
that they approve this Agreement and the Merger, except in strict
compliance with this Section 4.2, or (iv) enter into any
agreement with respect to any Competing Transaction, approve or
recommend or resolve to approve or recommend any Competing
Transaction, or enter into any agreement requiring it to abandon,
terminate or fail to consummate the Merger or the other
transactions contemplated by this Agreement.
(b) Notwithstanding the
foregoing sentence or anything to the contrary in this Agreement,
if during the period beginning on the Financing Contingency Release
Date to the Effective Time, the Company receives (in the absence of
any violation of this Section 4.2) a bonafide, unsolicited
written proposal or offer for a Competing Transaction prior to the
receipt of the Company Shareholder Approval and that has not been
withdrawn, which the Board of Directors, acting reasonably and in
good faith (after consultation with the Company’s outside
legal counsel and financial advisor), determines by majority vote
(excluding any members of the Board of Directors that are not
independent of the Third Parties making such offer for a Competing
Transaction) is superior to the terms of this Agreement based upon
the financial terms of the proposed Competing Transaction, the
proposed timing of the Competing Transaction or the likelihood that
such Competing Transaction will be consummated (a “Superior
Competing Transaction”), then the Company may, in response to
such unsolicited proposal or offer and subject to compliance with
this Section 4.2, furnish information with respect to the
Company and its Subsidiaries to, and participate in discussions and
negotiations directly or through its representatives with, such
Third Party. Notwithstanding the foregoing, during the period
beginning on the Financing Contingency Release Date to the
Effective Time, the Company shall not provide any non-public
information to any such Third Party unless the Company provides
such non-public information pursuant to a nondisclosure agreement
at least as restrictive as the Confidentiality Agreement (defined
below). Nothing contained in this Agreement shall prevent the Board
of Directors from (i) complying with any applicable Law, rule
or regulation, including, without limitation, Rule 14d-9 and Rule
14e-2 promulgated under the Exchange Act, (ii) making any
disclosure to the Company’s shareholders required by
applicable Law, rule or regulation, or (iii) otherwise making
such disclosure to the Company’s shareholders or otherwise
that the Board of Directors (after consultation with its counsel)
concludes in good faith is necessary in order to comply with its
fiduciary duties to the Company’s shareholders under
applicable Law.
2
(c) Subject to subparagraph
(d) below, if during the period beginning on the Financing
Contingency Release Date to the Effective Time the Board of
Directors determines that it has received a proposal for a Superior
Competing Transaction and reasonably determines in good faith
(after consultation with the Company’s outside counsel and
financial advisors) that taking any or all of the following actions
is necessary in order to comply with its fiduciary duties under
applicable Law, and provided, that neither the Company nor any
representative of the Company is and would not as a result be in
breach of any of the provisions of this Section 4.2, during
the period beginning on the Financing Contingency Release Date to
the Effective Time, the Company and the Board of Directors may
(i) withdraw, modify or change the Board of Director’s
approval or recommendation of this Agreement or the Merger,
(ii) approve or recommend to the Company’s shareholders
such Superior Competing Transaction, (iii) terminate this
Agreement in accordance with Section 6.4(ii), and/or
(iv) publicly announce the Board of Director’s intention
to do any or all of the foregoing.
(d) During the period
beginning on the Financing Contingency Release Date to the
Effective Time, the Company shall not take any of the actions
referred to in Section 4.2(b) and the Board of Directors shall
not take any of the actions referred to in Section 4.2(c)
unless the Company shall have delivered to Eastern prior written
notice advising Eastern that it intends to take such action, which
written notice shall state the material terms and conditions of the
applicable Superior Competing Transaction. The parties hereto agree
that, in the event any such written notice is delivered pursuant
hereto after the Financing Contingency Release Date, before the
Company takes any action referred to in Section 4.2(c),
Eastern shall be provided with three business days from the date of
delivery of such notice to agree to make adjustments to the terms
and conditions of this Agreement, and the Company shall negotiate
in good faith with respect thereto, to match or improve upon the
economic or other terms of the purportedly Superior Competing
Transaction. In addition during the period beginning on the
Financing Contingency Release Date to the Effective Time, the
Company shall notify Eastern as promptly as reasonably practicable,
and use its best efforts to provide such notice within one business
day, following receipt by the Company (or any of its advisors) of
any proposal for a Competing Transaction or any written request for
nonpublic information relating to the Company or any of its
Subsidiaries or for access to the business, properties, assets,
personnel, books or records of the Company or any of its
Subsidiaries by any Third Party that indicates it may be
considering making, or has made, a proposal for a Competing
Transaction (including the material terms and conditions of any
such proposal, indication of interest or request relating to a
Competing Transaction). During the period beginning on the
Financing Contingency Release Date to the Effective Time, The
Company shall keep Eastern reasonably informed, on a current basis,
of the status and material details of any such proposal, indication
or request (and any modification or amendment thereof), including
of any meeting of its Board of Directors (or any committee thereof)
at which its Board of Directors (or such committee) is reasonably
expected to consider any Competing Transaction.
3. Section 4.3 is amended and
restated as follows:
4.3 Reasonable Efforts to
Complete Transactions.
3
(a) During the period
beginning on the Financing Contingency Release Date to the
Effective Time, Subject to the terms and conditions herein
provided, each of the parties hereto shall cooperate with the other
and use its reasonable efforts to take, or cause to be taken, all
actions and to
|
