Execution Version
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
EPICOR SOFTWARE CORPORATION,
BOBBYJONES MERGER SUB, LLC
SHOPVISIBLE, LLC
AND
ROBERT M. JONES, AS REPRESENTATIVE
Dated as of December 10, 2014
1
Execution Version
Table of Contents
ARTICLE I DEFINITIONS1
ARTICLE II THE MERGER15
2.1THE MERGER.
15
2.2EFFECTIVE TIME; CLOSING.
15
2.3EFFECT OF THE MERGER.
15
2.4ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT OF SURVIVING COMPANY.
16
2.5EFFECT OF MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS.
16
2.6TREATMENT OF COMPANY OPTIONS AND COMPANY WARRANTS.
16
2.7EARN-OUT.
17
2.8CLOSING STATEMENT; PAYMENTS AT CLOSING.
18
2.9ADJUSTMENTS TO BASE MERGER CONSIDERATION.
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2.10PAYMENT PROCESS.
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2.11ESCROW AGREEMENT.
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2.12TAKING OF NECESSARY ACTION; FURTHER ACTION.
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2.13DISSENTING UNITS.
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ARTICLE III REPRESENTATIONS AND WARRANTIES RELATING TO THE COMPANY23
3.1ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
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1
3.2ORGANIZATIONAL DOCUMENTS.
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3.3AUTHORIZATION OF AGREEMENT.
24
3.4CAPITALIZATION.
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3.5NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
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3.6PERMITS; COMPLIANCE.
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3.7FINANCIAL STATEMENTS; UNDISCLOSED LIABILITIES.
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3.8ABSENCE OF CERTAIN CHANGES OR EVENTS.
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3.9LITIGATION; DISPUTES.
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3.10EMPLOYEE BENEFIT PLANS AND LABOR MATTERS.
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3.11TAXES.
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3.12PROPERTIES.
34
3.13INTELLECTUAL PROPERTY AND TECHNOLOGY.
35
3.14CERTAIN CONTRACTS.
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3.15ENVIRONMENTAL, HEALTH AND SAFETY.
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3.16INSURANCE.
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3.17CERTAIN TRANSACTIONS AND AGREEMENTS.
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3.18CUSTOMERS AND SUPPLIERS.
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3.19CERTAIN PAYMENTS.
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2
3.20BROKERS.
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3.21SUFFICIENCY OF ASSETS.
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3.22DISCLOSURE.
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3.23NO OTHER REPRESENTATIONS AND WARRANTIES.
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB45
4.1ORGANIZATION AND QUALIFICATION; OWNERSHIP AND INTERIM OPERATIONS OF MERGER
SUB.
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4.2AUTHORIZATION OF AGREEMENT.
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4.3NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
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4.4FINANCIAL ABILITY.
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4.5BROKERS.
46
4.6LITIGATION.
46
ARTICLE V CONDUCT PRIOR TO THE CLOSING46
5.1CONDUCT OF BUSINESS.
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5.2ACCESS AND INFORMATION.
48
ARTICLE VI ADDITIONAL AGREEMENTS48
6.1APPROPRIATE ACTIONS; CONSENTS; FILINGS; COOPERATION.
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6.2CONFIDENTIALITY; PUBLIC ANNOUNCEMENTS.
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3
6.3EXCLUSIVITY.
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6.4COMPANY MEMBER APPROVAL.
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6.5PAYOFF AMOUNTS; PAYOFF LETTERS; TRANSACTION EXPENSES.
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6.6TAX MATTERS.
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ARTICLE VII CONDITIONS TO CLOSING53
7.1CONDITIONS TO OBLIGATIONS OF EACH PARTY.
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7.2ADDITIONAL CONDITIONS TO OBLIGATIONS OF PARENT AND MERGER SUB.
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7.3ADDITIONAL CONDITIONS TO OBLIGATIONS OF THE COMPANY.
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ARTICLE VIII INDEMNIFICATION56
8.1INDEMNIFICATION BY THE COMPANY MEMBERS.
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8.2INDEMNIFICATION BY PARENT.
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8.3SURVIVAL TIME FOR CLAIMS; CLAIM NOTICE.
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8.4LIABILITY LIMITATIONS.
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8.5THIRD PARTY CLAIMS.
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8.6INDEMNIFICATION PROCEDURE.
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8.7SATISFACTION OF CLAIMS; ESCROW MATTERS.
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8.8TREATMENT OF INDEMNIFICATION PAYMENTS.
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8.9REPRESENTATIVE; FEES AND EXPENSES.
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4
ARTICLE IX TERMINATION, TERMINATION FEE; AMENDMENT AND WAIVER65
9.1TERMINATION.
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9.2EFFECT OF TERMINATION.
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9.3FEES AND EXPENSES.
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9.4AMENDMENT.
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9.5WAIVER.
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ARTICLE X GENERAL PROVISIONS66
10.1NOTICES.
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10.2HEADINGS.
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10.3INTERPRETATION.
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10.4SEVERABILITY.
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10.5ENTIRE AGREEMENT.
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10.6DISCLOSURE SCHEDULES.
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10.7ASSIGNMENT.
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10.8PARTIES IN INTEREST.
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10.9SPECIFIC PERFORMANCE.
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10.10FAILURE OR INDULGENCE NOT WAIVER.
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10.11GOVERNING LAW; EXCLUSIVE JURISDICTION.
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5
10.12COUNTERPARTS.
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered into as
of December 10, 2014, by and among Epicor Software Corporation, a Delaware
corporation ("Parent"), Bobbyjones Merger Sub, LLC, a Georgia limited liability
company and a wholly-owned subsidiary of Parent ("Merger Sub"), Shopvisible,