| Page | ||||
| Material Contracts |
15 | |||
| MBCA |
1 | |||
| Merger |
1 | |||
| Merger Consideration |
3 | |||
| Merger Sub |
1 | |||
| Minimum Parent Cash Period |
53 | |||
| NISPOM |
25 | |||
| No-Shop Period Start Date |
33 | |||
| NYSE |
12 | |||
| Order |
11 | |||
| Outside Date |
60 | |||
| Owned Real Property |
21 | |||
| Parent |
1 | |||
| Parent Cash on Hand |
53 | |||
| Parent Certificate |
3 | |||
| Parent Disclosure Letter |
23 | |||
| Parent Financial Statements |
27 | |||
| Parent Material Adverse Effect |
70 | |||
| Parent Plans |
46 | |||
| Parent Tax Opinion |
59 | |||
| Parent Tax Opinion Materials |
57 | |||
| Per Share Closing Price |
42 | |||
| Permits |
17 | |||
| Permitted Liens |
71 | |||
| person |
71 | |||
| Pivotal |
29 | |||
| Pivotal Class A Common Stock |
33 | |||
| Pivotal Class B Common Stock |
33 | |||
| Pivotal Series A Preferred Stock |
33 | |||
| principal executive officer |
71 | |||
| principal financial officer |
71 | |||
| Proxy Statement |
37 | |||
| Real Property |
21 | |||
| Representatives |
71 | |||
| Required Information |
50 | |||
| Reverse Termination Fee |
63 | |||
| Revolving Credit Facility |
71 | |||
| Rule 144 |
68 | |||
| SEC |
12 | |||
| Securities Act |
12 | |||
| Significant Subsidiary |
8 | |||
| Software |
71 | |||
| Solvent |
28 | |||
| SOX |
13 | |||
| Specified Person |
63 | |||
| Stock Consideration |
3 | |||
| Subsidiary |
72 | |||
| Superior Proposal |
35 | |||
| Surviving Corporation |
1 | |||
| Syndication and Offering Materials |
51 | |||
| Target Amount |
55 | |||
v
| Page | ||||
| Tax |
21 | |||
| Tax Return |
21 | |||
| Tax Sharing Agreement |
57 | |||
| Taxing Authority |
21 | |||
| Transaction Litigation |
46 | |||
| Transfer Restrictions |
72 | |||
| Vesting Effective Time |
42 | |||
| VMware |
7 | |||
| VMware Certificate |
32 | |||
| VMware Class A Common Stock |
9 | |||
| VMware Class B Common Stock |
9 | |||
| VMware Common Stock |
9 | |||
| VMware Intercompany Agreements |
72 | |||
| VMware Plans |
18 | |||
| VMware Promissory Notes |
10 | |||
| VMware SEC Documents |
13 | |||
| WARN Act |
18 | |||
vi
AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated as of October 12, 2015, among DENALI HOLDING INC., a Delaware corporation (“Parent”), DELL INC., a Delaware corporation (“Dell”), UNIVERSAL ACQUISITION CO., a Delaware corporation and direct wholly owned subsidiary of Parent (“Merger Sub”), and EMC CORPORATION, a Massachusetts corporation (the “Company”).
WHEREAS, the Board of Directors of the Company has, by unanimous vote of all of the directors, (i) determined that it is in the best interests of the Company and its shareholders, and declared it advisable, for the Company to enter into this Agreement, (ii) adopted this Agreement and approved the execution, delivery and performance of this Agreement by the Company and the consummation of the merger of Merger Sub with and into the Company (the “Merger”) and (iii) resolved to recommend approval of this Agreement by the shareholders of the Company;
WHEREAS, the Board of Directors of Parent has unanimously approved and declared advisable, and the Board of Directors of Merger Sub has unanimously approved and declared advisable, this Agreement and the Merger, upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, for U.S. Federal income tax purposes, it is intended that the Merger, together with related transactions, qualifies as an exchange within the meaning of Section 351 of the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations promulgated thereunder; and
WHEREAS, Dell will receive direct benefits from the Merger, including as a result of the expected contribution of the Company to Dell following the Effective Time.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, and subject to the conditions set forth herein, the parties hereto agree as follows:
ARTICLE I
