UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (date of earliest event reported): February 29, 2008
DOCUMENT SCIENCES CORPORATION
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 000-20981 | 33-0485994 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification Number) |
| 5958 Priestly Drive Carlsbad, CA |
92008 | |
| (Address of Principal Executive Office) | (Zip Code) |
Registrants telephone number, including area code: (760) 602-1400
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
On December 26, 2007, Document Sciences Corporation (Document Sciences or the Company), EMC Corporation and Esteem Merger Corporation entered into an Agreement and Plan of Merger (the Merger Agreement) whereby the Company will, subject to the satisfaction of certain conditions, become a wholly-owned subsidiary of EMC (the Merger). In connection with the Merger, the Board of Directors of the Company authorized amendments to the following agreements and plans.
| Item 3.03 | Material Modification to Rights of Security Holders |
On March 3, 2008, the Company entered into the First Amendment (the Rights Agreement Amendment), dated as of March 3, 2008, by and between the Company and Computershare Trust Company, N.A., as successor rights agent, to the Rights Agreement (the Rights Agreement), dated as of May 11, 2001, by and between the Company and U.S. Stock Transfer Corporation. The Rights Agreement Amendment provides that the Rights Agreement shall not apply to the Merger Agreement, the Merger and any other transactions contemplated by the Merger Agreement, and any compliance with the terms of the Merger Agreement, such that (i) the execution, delivery and performance of, and compliance with, the Merger Agreement and the consummation of the Merger and any of the transactions contemplated by the Merger Agreement shall not be deemed a Section 13(a) Event (as defined in the Rights Agreement), (ii) a 20% Ownership Date (as defined in the Rights Agreement) shall not occur, and the rights issued under the Rights Agreement shall not become exercisable due to the execution, delivery and performance of, or compliance with, the Merger Agreement or the consummation of the Merger or any other transactions contemplated by the Merger Agreement, and (iii) the expiration date of the Rights Agreement shall occur immediately prior to the effective time of the Merger. Notwithstanding the foregoing, if the Merger Agreement is terminated, the Rights Agreement will continue to remain in effect and shall apply to EMC, Esteem Merger Corporation and any of their affiliates with the same effect as though the Rights Agreement Amendment had not occurred.
The foregoing description of the Rights Agreement Amendment is qualified in its entirety by reference to the full text of the Rights Agreement Amendment, which is attached hereto as Exhibit 4.1 and incorporated herein by reference.
| Item 5.02 | Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers. |
On March 3, 2008, the Company entered into Amendment No. 1 (the 1995 Plan Amendment) to the Document Sciences Corporation 1995 Stock Incentive Plan, as amended and restated on March 26, 1999 (the 1995 Plan). The 1995 Plan Amendment provides that as of the effective time of the Merger, each outstanding Stock Option (as defined in the 1995 Plan), whether or not vested, shall be deemed fully vested and shall be cancelled and terminated, and each Optionee (as defined in the 1995 Plan) shall be entitled to receive in exchange therefor a cash payment (at the time and in the manner specified in the Merger Agreement), equal to the product of (i) the number of shares of stock for which such Stock Option is exercisable, and (ii) the excess (if any) of the Per Share Merger Consideration (as defined in the Merger Agreement) over the per share Exercise Price (as defined in the 1995 Plan) of such Stock Option, less applicable tax withholdings.
On March 3, 2008, the Company entered into Amendment No. 1 (the 2004 Plan Amendment) to the Document Sciences Corporation Amended and Restated 2004 Stock Incentive Plan (the 2004 Plan). The 2004 Plan Amendment provides that as of the effective time of the Merger, each outstanding Stock Option (as defined in the 2004 Plan), whether or not vested, shall be deemed fully vested and shall be cancelled and terminated, and each Holder (as defined in the 2004 Plan) shall be entitled to receive in exchange therefor a cash payment (at the time and in the manner specified in the Merger Agreement), equal to the product of (i) the number of shares of stock for which such Stock Option is exercisable, and (ii) the excess (if any) of the Per Share Merger Consideration (as defined in the Merger Agreement) over the per share Exercise Price (as defined in the 2004 Plan) of such Stock Option, less applicable tax withholdings.
On March 3, 2008, the Company entered into Amendment No. 1 (the Calnan Plan Amendment) to the Stock Option and Restricted Stock Plan and Agreement with Edward Calnan (the Calnan Plan), dated as of September 16, 2006, by and between Edward Calnan (Calnan) and the Company. The Calnan Plan Amendment
provides that as of the effective time of the Merger, each outstanding Option (as defined in the Calnan Plan), whether or not vested, shall be deemed fully vested and shall be cancelled and terminated, and Calnan shall be entitled to receive in exchange therefor a cash payment (at the time and in the manner specified in the Merger Agreement), equal to the product of (i) the number of shares of stock for which such Option is exercisable, and (ii) the excess (if any) of the Per Share Merger Consideration over the per share Exercise Price (as defined in the Calnan Plan) of such Option, less applicable tax withholdings.
The foregoing descriptions of the 1995 Plan Amendment, the 2004 Plan Amendment and the Calnan Plan Amendment are qualified in their entirety by reference to the full text of such amendments, which are attached hereto as Exhibits 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
| Exhibit No. |
Description of Exhibit | |
| 4.1 | First Amendment to Rights Agreement by and between Document Sciences Corporation and Computershare Trust Company, N.A., dated as of March 3, 2008. | |
| 10.1 | Amendment No. 1 to Document Sciences Corporation 1995 Stock Incentive Plan, as amended and restated on March 26, 1999, dated as of March 3, 2008. | |
| 10.2 | Amendment No. 1 to Document Sciences Corporation Amended and Restated 2004 Stock Incentive Plan, dated as of March 3, 2008. | |
| 10.3 | Amendment No. 1 to Stock Option and Restricted Stock Plan and Agreement with Edward Calnan, dated as of March 3, 2008. | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| DOCUMENT SCIENCES CORPORATION | ||||||
| Date: March 6, 2008 | By: | /s/ Todd W. Schmidt | ||||
| Name: Todd W. Schmidt | ||||||
| Title: Chief Financial Officer | ||||||
EXHIBIT INDEX
| Exhibit No. |
Description of Exhibit | |
| 4.1 | First Amendment to Rights Agreement by and between Document Sciences Corporation and Computershare Trust Company, N.A., dated as of March 3, 2008. | |
| 10.1 | Amendment No. 1 to Document Sciences Corporation 1995 Stock Incentive Plan, as amended and restated on March 26, 1999, dated as of March 3, 2008. | |
| 10.2 | Amendment No. 1 to Document Sciences Corporation Amended and Restated 2004 Stock Incentive Plan, dated as of March 3, 2008. | |
| 10.3 | Amendment No. 1 to Stock Option and Restricted Stock Plan and Agreement with Edward Calnan, dated as of March 3, 2008. | |
Exhibit 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment (the Amendment), dated as of March 3, 2008, by and between Document Sciences Corporation, a Delaware corporation (the Company), and Computershare Trust Company, N.A., as successor rights agent (the Rights Agent), amends that certain Rights Agreement, dated as of May 11, 2001, by and between the Company and U.S. Stock Transfer Corporation (the Rights Agreement).
WHEREAS, the Company is a party to the Agreement and Plan of Merger, dated as of December 26, 2007, by and among EMC Corporation, Esteem Merger Corporation and the Company (the Merger Agreement);
WHEREAS, for the avoidance of doubt, the Board of Directors of the Company has determined that it is in the best interests of the Company and its stockholders to amend the Rights Agreement to exempt the Merger Agreement and the transactions contemplated thereby from the application of the Rights Agreement as provided for herein;
WHEREAS, U.S. Stock Transfer Corporation served as the rights agent under the Rights Agreement until it was succeeded as rights agent by Computershare Trust Company, N.A., which undertook the duties and obligations of rights agent under the terms and conditions of the Rights Agreement; and
WHEREAS, pursuant to its authority under Section 27 of the Rights Agreement, the Board of Directors of the Company has authorized and approved this Amendment as of the date hereof.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
| 1. | The Rights Agreement (including the exhibits thereto) is hereby amended as follows: |
| a. | The term U.S. Stock Transfer Corporation and all abbreviations thereof and similar references thereto shall be replaced by Computershare Trust Company, N.A. Each and every reference to Rights Agent shall refer to Computershare Trust Company, N.A. |
| b. | A new Section 35 shall be added as follows: |
| i. | Merger Agreement with EMC Corporation and Esteem Merger Corporation. Notwithstanding anything in the Rights Agreement to the contrary, the Rights Agreement, including, without limitation, Section 13 hereof, shall not apply in any manner to (i) the Agreement and Plan of Merger (as it may be amended, modified or supplemented from time to time, the Merger Agreement), dated as of December 26, 2007, by and among EMC Corporation, a Massachusetts corporation (Parent), Esteem Merger Corporation, a Delaware corporation and a wholly- |
| owned subsidiary of Parent (Merger Sub), and the Company, (ii) the merger of Merger Sub with and into the Company, as provided for in the Merger Agreement (the Merger), or any other transactions contemplated by the Merger Agreement, or (iii) any compliance with the terms of the Merger Agreement, such that, without limiting, and in furtherance of, the foregoing, (a) the execution, delivery and performance of, and compliance with, the Merger Agreement and the consummation of the Merger and any of the other transactions contemplated by the Merger Agreement shall not be or otherwise be deemed to be, and shall not constitute, a Section 13(a) Event, (b) a 20% Ownership Date shall not occur, and the Rights issued under this Agreement shall not become exercisable, as a result of or in connection with the execution, delivery or performance of, or compliance with, the Merger Agreement or the consummation of the Merger or any other transactions contemplated by the Merger Agreement, and (c) the Rights Expiration Date shall occur immediately prior to the effective time of the Merger; provided, however, that (i) the foregoing exemptions relating to the Merger Agreement, the consummation of the Merger and any other transactions contemplated by the Merger Agreement shall be automatically and immediately revoked in the event of any termination of the Merger Agreement, with the result that the Rights Agreement shall remain in full force and effect after any termination of the Merger Agreement and shall be applicable to Parent, Merger Sub and any of their affiliates with the same effect as though the Amendment to this Agreement dated as of March 3, 2008 (the Amendment) had not occurred and (ii) the Company shall provide Rights Agent with notice that the Merger has not occurred; provided, further, that the Amendment shall not exempt from the terms of this Agreement any action taken by Parent, Merger Sub or any other party not expressly provided for in the Merger Agreement, including, without limitation, acquisitions of Common Shares in the open market, pursuant to a tender or exchange offer or in block trades. |
| 2. | All terms defined in the Rights Agreement that are used herein shall have the meanings defined in the Rights Agreement, unless specifically defined otherwise herein. |
| 3. | This Amendment shall be deemed a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws such state applicable to contracts made and performed entirely within such state. |
| 4. | Except as expressly herein amended, the terms and conditions of the Rights Agreement shall remain in full force and effect. |
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| 5. | The invalidity or unenforceability of any provision of this Amendment shall not affect the validity or enforceability of any other provision of this Amendment or the Rights Agreement, each of which shall remain in full force and effect, and in lieu of such invalid or unenforceable provision there shall be automatically added as part of this Amendment a valid and enforceable provision as similar in terms to the invalid or unenforceable provision as possible, provided that this Amendment, as so amended, (a) reflects the intent of the parties hereto, and (b) does not change the bargained for consideration or benefits to be received by each party hereto. |
| 6. | This Amendment may be executed in counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and both such counterparts shall together constitute but one and the same instrument. |
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
| DOCUMENT SCIENCES CORPORATION | ||
| By: | /s/ Todd Schmidt | |
| Name: | Todd Schmidt | |
| Title: | Chief Financial Officer | |
| COMPUTERSHARE TRUST COMPANY, N.A. | ||
| By: | /s/ Dennis V. Moccia | |
| Name: | Dennis V. Moccia | |
| Title: | Managing Director | |
Exhibit 10.1
AMENDMENT NO. 1 TO
DOCUMENT SCIENCES CORPORATION
1995 STOCK INCENTIVE PLAN
(As Amended & Restated on March 26, 1999)
This Amendment No. 1 to Document Sciences Corporation 1995 Stock Incentive Plan (this Amendment No. 1) is made on March 3, 2008, by Document Sciences Corporation, a Delaware corporation (the Company), effective as of the date hereof. Capitalized terms not defined herein shall be construed and interpreted in the manner described in the Document Sciences Corporation 1995 Stock Incentive Plan, as amended and restated (the Plan).
RECITALS
WHEREAS, the Company has entered into an Agreement and Plan of Merger by and among EMC Corporation, Esteem Merger Corporation and the Company, dated as of December 26, 2007 (the Merger Agreement);
WHEREAS, pursuant to Section 2.9 of the Merger Agreement, as of the Effective Time (as such term is defined in the Merger Agreement), all Company stock options shall be fully vested, cancelled and cashed-out, and each holder of such options shall automatically receive, for each option held by such holder that is then-outstanding, a cash payment (less withholdings) equal to the excess (if any) of the Per Share Merger Consideration (as such term is defined in the Merger Agreement) over the per share exercise price applicable to such option;
WHEREAS, pursuant to Section 5.7 of the Merger Agreement, each Company option plan (including the Plan) must be amended prior to the Effective Time to the extent necessary to effectuate the transactions contemplated by Section 2.9 of the Merger Agreement;
WHEREAS, pursuant to Section 9 of the Plan, the Board of Directors of the Company (the Board) may amend the Plan at any time, as long as such amendment does not impair the rights of a Plan Participant, and no shareholder approval is needed unless otherwise required by law or any stock exchange or market system listing standard;
WHEREAS, pursuant to its powers in Article 3 of the Plan, the Plan Administrator has determined that the amendments hereunder will not impair the rights of any Plan Participant and that no shareholder approval is required for such amendments; and
WHEREAS, the Board has approved this Amendment No. 1.
AMENDMENT
NOW, THEREFORE, the Plan is hereby amended as follows:
1. A new Section 8.1(g) is hereby added to read as follows:
(g) EMC Merger Cash-Out. Notwithstanding anything to the contrary herein, but subject to the consummation of the merger contemplated by the Agreement and Plan of Merger by and among EMC Corporation, Esteem Merger Corporation and the Company, dated as of December 26, 2007 (the Merger Agreement), as of the Effective Time (as such term is defined in the Merger Agreement), each outstanding Stock Option (whether or not vested) shall be deemed fully vested and shall be cancelled and terminated, and each Optionee shall be entitled to receive in exchange therefor a cash payment (at the time and in the manner specified in the Merger Agreement), equal to the product of (i) the number of shares of Stock for which such Stock Option is exercisable, and (ii) the excess (if any) of the Per Share Merger Consideration (as such term is defined in the Merger Agreement) over the per share Exercise Price of such Stock Option, less applicable tax withholdings.
2. This Amendment No. 1 shall be deemed a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws such state applicable to contracts made and performed entirely within such state.
3. Except as expressly herein amended, the terms and conditions of the Plan shall remain in full force and effect.
4. The invalidity or unenforceability of any provision of this Amendment No. 1 shall not affect the validity or enforceability of any other provision of this Amendment No. 1 or the Plan, each of which shall remain in full force and effect, and in lieu of such invalid or unenforceable provision there shall be automatically added as part of this Amendment No. 1 a valid and enforceable provision as similar in terms to the invalid or unenforceable provision as possible, provided that this Amendment No. 1, as so amended, (a) reflects the intent of the parties hereto, and (b) does not change the bargained for consideration or benefits to be received by each party hereto.
5. This Amendment No. 1 may be executed in counterparts, each of which shall for all purposes be deemed to be an original, and both such counterparts shall together constitute but one and the same instrument.
[Signature page follows.]
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IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to be executed by a duly authorized officer as of the day and year first written above.
| DOCUMENT SCIENCES CORPORATION | ||
| By: | /s/ Todd Schmidt | |
| Name: | Todd Schmidt | |
| Title: | Chief Financial Officer | |
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO
DOCUMENT SCIENCES CORPORATION 1995 STOCK INCENTIVE PLAN
Exhibit 10.2
AMENDMENT NO. 1 TO
DOCUMENT SCIENCES CORPORATION
AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN
This Amendment No. 1 to Document Sciences Corporation Amended and Restated 2004 Stock Incentive Plan (this Amendment No. 1) is made on March 3, 2008, by Document Sciences Corporation, a Delaware corporation (the Company), effective as of the date hereof. Capitalized terms not defined herein shall be construed and interpreted in the manner described in the Document Sciences Corporation Amended and Restated 2004 Stock Incentive Plan (the Plan).
RECITALS
WHEREAS, the Company has entered into an Agreement and Plan of Merger by and among EMC Corporation, Esteem Merger Corporation, and the Company, dated as of December 26, 2007 (the Merger Agreement);
WHEREAS, pursuant to Section 2.9 of the Merger Agreement, as of the Effective Time (as such term is defined in the Merger Agreement), all Company stock options shall be fully vested, cancelled and cashed-out, and each holder of such options shall automatically receive, for each option held by such holder that is then-outstanding, a cash payment (less withholdings) equal to the excess (if any) of the Per Share Merger Consideration (as such term is defined in the Merger Agreement) over the per share option exercise price applicable to such option;
WHEREAS, pursuant to Section 5.7 of the Merger Agreement, each Company option plan (including the Plan) must be amended prior to the Effective Time to the extent necessary to effectuate the transactions contemplated by Section 2.9 of the Merger Agreement;
WHEREAS, pursuant to Section 11 of the Plan, the Board of Directors of the Company (the Board) may amend the Plan at any time, as long as such amendment does not impair the rights of a Plan Participant, and no shareholder approval is needed unless otherwise required by law or any stock exchange or market system listing standard;
WHEREAS, pursuant to its powers in Article 3 of the Plan, the Plan Administrator has determined that the amendments hereunder will not impair the rights of any Plan Participant and that no shareholder approval is required for such amendments; and
WHEREAS, the Board has approved this Amendment No. 1.
AMENDMENT
NOW, THEREFORE, the Plan is hereby amended as follows:
1. A new Section 10.1(g) is hereby added to read as follows:
(g) EMC Merger Cash-Out. Notwithstanding anything to the contrary herein, but subject to the consummation of the merger contemplated by the Agreement and Plan of Merger by and among EMC Corporation, Esteem Merger Corporation, and the Company, dated as of December 26, 2007 (the Merger Agreement), as of the Effective Time (as such term is defined in the Merger Agreement), each outstanding Stock Option (whether or not vested) shall be deemed fully vested and shall be cancelled and terminated, and each Holder shall be entitled to receive in exchange therefor a cash payment (at the time and in the manner specified in the Merger Agreement), equal to the product of (i) the number of shares of Stock for which such Stock Option is exercisable, and (ii) the excess (if any) of the Per Share Merger Consideration (as such term is defined in the Merger Agreement) over the per share Exercise Price of such Stock Option, less applicable tax withholdings.
2. This Amendment No. 1 shall be deemed a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws such state applicable to contracts made and performed entirely within such state.
3. Except as expressly herein amended, the terms and conditions of the Plan shall remain in full force and effect.
4. The invalidity or unenforceability of any provision of this Amendment No. 1 shall not affect the validity or enforceability of any other provision of this Amendment No. 1 or the Plan, each of which shall remain in full force and effect, and in lieu of such invalid or unenforceable provision there shall be automatically added as part of this Amendment No. 1 a valid and enforceable provision as similar in terms to the invalid or unenforceable provision as possible, provided that this Amendment No. 1, as so amended, (a) reflects the intent of the parties hereto, and (b) does not change the bargained for consideration or benefits to be received by each party hereto.
5. This Amendment No. 1 may be executed in counterparts, each of which shall for all purposes be deemed to be an original, and both such counterparts shall together constitute but one and the same instrument.
[Signature page follows.]
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IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to be executed by a duly authorized officer as of the day and year first written above.
| DOCUMENT SCIENCES CORPORATION | ||
| By: | /s/ Todd Schmidt | |
| Name: | Todd Schmidt | |
| Title: | Chief Financial Officer | |
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO
DOCUMENT SCIENCES CORPORATION AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN
Exhibit 10.3
AMENDMENT NO. 1 TO
STOCK OPTION AND RESTRICTED STOCK PLAN AND AGREEMENT
WITH EDWARD CALNAN
This Amendment No. 1 (this Amendment No. 1) to that certain Stock Option and Restricted Stock Plan and Agreement with Edward Calnan, dated as of September 16, 2006 (the Agreement), by and between Edward Calnan (Grantee) and Document Sciences Corporation, a Delaware corporation (the Company), is made on March 3, 2008, by and between Grantee and the Company, effective as of the date hereof. Capitalized terms not defined herein shall be construed and interpreted in the manner described in the Agreement.
RECITALS
WHEREAS, the Company has entered into an Agreement and Plan of Merger by and among EMC Corporation, Esteem Merger Corporation and the Company, dated as of December 26, 2007 (the Merger Agreement);
WHEREAS, pursuant to Section 2.9 of the Merger Agreement, as of the Effective Time (as such term is defined in the Merger Agreement), all Company stock options shall be fully vested, cancelled and cashed-out, and each holder of such options shall automatically receive, for each option held by such holder that is then-outstanding, a cash payment (less withholdings) equal to the excess (if any) of the Per Share Merger Consideration (as such term is defined in the Merger Agreement) over the per share option exercise price applicable to such option;
WHEREAS, pursuant to Section 5.7 of the Merger Agreement, each Company option plan (including the Agreement) must be amended prior to the Effective Time to the extent necessary to effectuate the transactions contemplated by Section 2.9 of the Merger Agreement;
WHEREAS, Grantee and the Company desire to amend the Agreement in accordance with the Companys obligations of Section 2.9 of the Merger Agreement; and
WHEREAS, the Board of Directors of the Company has approved this Amendment No. 1.
AMENDMENT
NOW, THEREFORE, the Plan is hereby amended as follows:
1. A new Section 12(a)(7) is hereby added to read as follows:
(7) EMC Merger Cash-Out. Notwithstanding anything to the contrary herein, including anything contained in Sections 12(a)(1) through 12(a)(6), but subject to the consummation of the merger contemplated by the Agreement and Plan of Merger by and among EMC Corporation, Esteem Merger Corporation, and the Company, dated as of December 26, 2007 (the Merger Agreement), as
of the Effective Time (as such term is defined in the Merger Agreement), each outstanding Option (whether or not vested) shall be deemed fully vested and shall be cancelled and terminated, and Grantee shall be entitled to receive in exchange therefor a cash payment (at the time and in the manner specified in the Merger Agreement), equal to the product of (i) the number of shares of Common Stock for which such Option is exercisable, and (ii) the excess (if any) of the Per Share Merger Consideration (as such term is defined in the Merger Agreement) over the per share Exercise Price of such Option, less applicable tax withholdings.
2. This Amendment No. 1 shall be deemed a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws such state applicable to contracts made and performed entirely within such state.
3. Except as expressly herein amended, the terms and conditions of the Agreement shall remain in full force and effect.
4. The invalidity or unenforceability of any provision of this Amendment No. 1 shall not affect the validity or enforceability of any other provision of this Amendment No. 1 or the Agreement, each of which shall remain in full force and effect, and in lieu of such invalid or unenforceable provision there shall be automatically added as part of this Amendment No. 1 a valid and enforceable provision as similar in terms to the invalid or unenforceable provision as possible, provided that this Amendment No. 1, as so amended, (a) reflects the intent of the parties hereto, and (b) does not change the bargained for consideration or benefits to be received by each party hereto.
5. This Amendment No. 1 may be executed in counterparts, each of which shall for all purposes be deemed to be an original, and both such counterparts shall together constitute but one and the same instrument.
[Signature page follows.]
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IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to be executed by a duly authorized officer as of the day and year first written above.
| DOCUMENT SCIENCES CORPORATION | ||
| By: | /s/ Todd Schmidt | |
| Name: | Todd Schmidt | |
| Title: | Chief Financial Officer | |
| GRANTEE | ||
| /s/ Edward Calnan | ||
| Edward Calnan | ||
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO
STOCK OPTION AND RESTRICTED STOCK PLAN AND AGREEMENT
WITH EDWARD CALNAN