Nice Systems Ltd. (2007)Full Document 

Start of Preview
The Agreement and Plan of Merger has been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about NICE. The representations, warranties and covenants contained in the Agreement and Plan of Merger were made only for purposes of such agreement and as of the specific dates therein, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Agreement and Plan of Merger. The representations and warranties may have been made for the purposes of allocating contractual risk between the parties to the agreement instead of establishing those matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third party beneficiaries under the Agreement and Plan of Merger and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of NICE, Nemo Acquisitions Ltd. or Actimize Ltd. or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Agreement and Plan of Merger, which subsequent information may or may not be fully reflected in NICE's public disclosures. AGREEMENT AND PLAN OF MERGER Among Nice Systems Ltd., Nemo Acquisitions Ltd. and Actimize Ltd. Dated as of July 2, 2007 - i - AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of July 2, 2007, entered into by and among NICE SYSTEMS LTD., an Israeli company ("PARENT"), NEMO ACQUISITIONS LTD., an Israeli company and a wholly owned subsidiary of Parent ("MERGER SUB), and ACTIMIZE LTD., an Israeli company (the "COMPANY"; Parent, Merger Sub and the Company are collectively referred to as the "PARTIES"). RECITALS WHEREAS, upon the terms and subject to the conditions of this Agreement and in accordance with Sections 314-327 of the Companies Law, 5759-1999 (the "COMPANIES LAW"), the Parties intend to effect the merger of the Company and Merger Sub, pursuant to which Merger Sub will cease to exist and the Company will become a wholly-owned subsidiary of Parent; and WHEREAS, the respective boards of directors of each of Parent, Merger Sub and the Company have approved the merger of Merger Sub with and into the Company (the "MERGER") upon the terms and subject to the conditions set forth in this Agreement and have approved and declared advisable this Agreement; and WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and essential inducement for Parent's and Merger Sub's willingness to enter into this Agreement, each of the Company's shareholders identified in SCHEDULE 1.1 has executed a voting and proxy agreement in the form attached hereto as EXHIBIT A, pursuant to which such shareholders have agreed to vote in favor of, approve and adopt this Agreement, the Merger and the other transactions contemplated by this Agreement and the other Transaction Documents (as hereinafter defined); and WHEREAS, concurrently with the execution and delivery of this Agreement and as a further condition and essential inducement for Parent's and Merger Sub's willingness to enter into this Agreement, the individuals identified in SCHEDULE 1.2 hereto are executing an employment addendum (the "EMPLOYMENT ADDENDUMS"), for their continuing employment with the Parent or any Subsidiary thereof following the Effective Time; and WHEREAS, concurrently with the execution and delivery of this Agreement and as a further condition and essential inducement for Parent's and Merger Sub's willingness to enter into this Agreement, certain of the individuals identified in SCHEDULE 1.2 hereto are also executing a commitment annex (the "COMMITMENT ANNEX"); and WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements in connection with this Agreement. NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants, and agreements contained herein, the parties hereto agree as follows: ARTICLE I THE MERGER 1.1. THE MERGER. Upon the terms and subject to the conditions set forth in this Agreement and the applicable provisions of the Companies Law, at the Effective Time (as defined in Section 1.2 hereof), Merger Sub shall be merged with and into the Company in accordance with Sections 314 through 327 of the Companies Law, and the separate corporate existence of Merger Sub shall thereupon cease. The Company shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the "SURVIVING CORPORATION"), and the separate corporate existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger in accordance with the Companies Law. 1.2. EFFECTIVE TIME; CLOSING. Unless otherwise mutually agreed in writing between the Parties, the closing of the Merger (the "CLOSING") shall take place, subject to the terms and conditions of this Agreement, at the offices of Goldfarb, Levy, Eran, Meiri & Co., 2 Weizmann Street Tel Aviv 64239, Israel, at a time and date to be designated by the Parties (the "CLOSING DATE") which shall be no later than the 2nd (second) business day after the satisfaction or waiver of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions, and subject to Section 7.4 hereof) or at such other time, date and location as the Parties hereto shall mutually agree. For purposes of this Agreement, the term "BUSINESS DAY" shall mean any day other than a Friday, Saturday or a day on which banks are required or authorized to close in the State of Israel. The Merger shall become effective upon the issuance by the Registrar of Companies of the State of Israel (the "COMPANIES REGISTRAR") of a certificate evidencing the completion of the Merger in accordance with Section 323(5) of the Companies Law (the "EFFECTIVE TIME"). - 2 - ARTICLE II ARTICLES OF ASSOCIATION OF THE SURVIVING CORPORATION 2.1. THE ARTICLES OF ASSOCIATION. The Articles of Association of Merger Sub as in effect immediately prior to the Effective Time shall be the Articles of Association of the Surviving Corporation (the "CHARTER"), until duly amended as provided therein or by applicable law. ARTICLE III OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION 3.1. DIRECTORS. The directors of the Surviving Corporation immediately after the Effective Time, and until their respective successors are duly elected, and qualified or their earlier death, resignation or removal in accordance with the Articles of Association of the Surviving Corporation, shall be the respective individuals who are directors of Merger Sub immediately prior to the Effective Time.
End of Preview