M&A Boot Camp booklet 2023 - Flipbook - Page 91
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (the “Agreement”) is made and entered into as of January 20, 2009, by and among: RIVERBED TECHNOLOGY, INC., a
Delaware corporation (“Parent”); MAPLE ACQUISITION S UB, INC., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger
Sub”); MAZU NETWORKS, INC., a Delaware corporation (the “Company”); and DONALD A. S ULLIVAN, as the Stockholders’ Agent (as defined in
Section 10.1). Certain other capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
A. Parent, Merger Sub and the Company intend to effect a merger of Merger Sub into the Company (the “Merger”) in accordance with this
Agreement and the Delaware General Corporation Law (the “DGCL”). Upon consummation of the Merger, Merger Sub will cease to exist, and the
Company will become a wholly-owned subsidiary of Parent.
B. The respective boards of directors of Parent, Merger Sub and the Company have approved this Agreement and the Merger.
AGREEMENT
The parties to this Agreement agree as follows:
1.
DESCRIPTION OF TRANSACTION
1.1 Merger of Merger Sub into the Company. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective
Time (as defined in Section 1.3), Merger Sub shall be merged with and into the Company, and the separate existence of Merger Sub shall cease.
The Company will continue as the surviving corporation in the Merger (the “Surviving Corporation”).
1.2 Effect of the Merger. The Merger shall have the effects set forth in this Agreement and in the applicable provisions of the DGCL.
1.3 Closing; Effective Time. The consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at the
offices of Cooley Godward Kronish LLP, 3175 Hanover Street, Palo Alto, California 94304 at 10:00 a.m. on a date to be designated by Parent, which
shall be no later than the fifth business day after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in
Sections 6 and 7 (other than those conditions set forth in Sections 6.7(d), 6.7(e), 6.7(f), 6.7(j) and 7.4(b), but subject to the satisfaction or waiver of
such conditions) or at such time and date as the parties may designate. The date on which the Closing actually takes place is referred to in this
Agreement as the “Closing Date.” Contemporaneously with or as promptly as practicable after the Closing, a properly executed certificate of
merger (the “Certificate of Merger”) conforming to the requirements of the DGCL shall be filed with the Secretary of State of the State of Delaware.
The Merger shall become effective as of the time that the Certificate of Merger is filed and accepted by the Secretary of State of the State of
Delaware (the “Effective Time”).
1.