Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF
CATAPULT COMMUNICATIONS CORPORATION,
A CALIFORNIA CORPORATION
WITH AND INTO
CATAPULT COMMUNICATIONS CORPORATION,
A NEVADA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of June 10, 1998 (the
"Agreement") is between Catapult Communications Corporation, a Nevada
corporation having its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Catapult Nevada"), and Catapult
Communications Corporation, a California corporation having its principal
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Catapult California"). Catapult Nevada and Catapult California are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. Catapult Nevada is a corporation duly organized and existing under
the laws of the State of Nevada and has an authorized capital of 30,000,000
shares, $0.001 par value, 25,000,000 of which are designated "Common Stock,"
and 5,000,000 of which are designated "Preferred Stock." As of June 10,
1998, 100 shares of Common Stock were issued and outstanding, all of which
are held by Catapult California, and no shares of Preferred stock were issued
and outstanding.
B. Catapult California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital of
10,000,000 shares, all of which are designated "Common Stock."
C. The Board of Directors of Catapult California has determined that,
for the purpose of effecting the reincorporation of Catapult California into
the State of Nevada, it is advisable and in the best interests of Catapult
California and its shareholders that Catapult California merge with and into
Catapult Nevada upon the terms and conditions herein provided.
D. The respective Boards of Directors of Catapult Nevada and Catapult
California have approved this Agreement and have directed that this Agreement
be submitted to a vote of their respective shareholders and executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Catapult Nevada and Catapult California hereby agree,
subject to the terms and conditions hereinafter set forth, as follows:
I.
MERGER
A. MERGER. In accordance with the provisions of this Agreement, the
Nevada General Corporation Law and the California General Corporation Law,
Catapult California shall be merged with and into Catapult Nevada (the
"Merger"), the separate existence of Catapult California shall cease and
Catapult Nevada shall be, and is herein sometimes referred to as, the
"Surviving Corporation," and the name of the Surviving Corporation shall be
Catapult Communications Corporation, and the surviving corporation shall be a
Nevada corporation under the Nevada General Corporation Law.
B. FILING AND EFFECTIVENESS. The Merger shall become effective when
the following actions shall have been completed:
1. This Agreement and the Merger shall have been adopted and
approved by the shareholders of each Constituent Corporation in
accordance with the requirements of the Nevada General Corporation Law
and the California General Corporation Law;
2. All of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied or duly
waived by the party entitled to satisfaction thereof; and
3. Executed Articles of Merger meeting the requirements of the
Nevada General Corporation Law shall have been filed with the Secretary
of State of the State of Nevada.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date of the Merger."
C. EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of Catapult California shall cease and Catapult Nevada, as
the Surviving Corporation, (i) shall continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the Effective
Date of the Merger, (ii) shall be subject to all actions previously taken by
its and Catapult California's Boards of Directors, (iii) shall succeed,
without other transfer, to all of the assets, rights, powers and property of
Catapult California in the manner as more fully set forth in Section 92A.250
of the Nevada General Corporation Law, (iv) shall continue to be subject to
all of its debts, liabilities and obligations as constituted immediately
prior to the Effective Date of the Merger, and (v) shall succeed, without
other transfer, to all of the debts, liabilities and obligations of Catapult
California in the same manner as if Catapult Nevada had itself incurred them,
all as more fully provided under the applicable provisions of the Nevada
General Corporation Law and the California General Corporation Law.
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II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
A. ARTICLES OF INCORPORATION. The articles of incorporation of
Catapult Nevada as in effect immediately prior to the Effective Date of the
Merger shall be amended to increase the authorized capital to 45,000,000
shares, $0.001 par value, and to increase the number of shares authorized
which are designated as "Common Stock," to 40,000,000. The number of shares
authorized which are designated "Preferred Stock" shall remain at 5,000,000.
In all other respects, the articles of incorporation of Catapult Nevada shall
continue in full force and effect as the articles of incorporation of the
Surviving Corporation.
B. BYLAWS. The bylaws of Catapult Nevada as in effect immediately
prior to the Effective Date of the Merger shall continue in full force and
effect as the bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
III.
MANNER OF CONVERSION OF STOCK
A. CATAPULT CALIFORNIA COMMON STOCK. Upon the Effective Date of the
Merger, every two shares of Catapult California Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by the Constituent Corporations, the holder of such shares
or any other person, be converted into and exchanged for three fully paid and
nonassessable shares of Common Stock, $0.001 par value, of the Surviving
Corporation.
B. CATAPULT CALIFORNIA OPTIONS, STOCK PURCHASE RIGHTS AND CONVERTIBLE
SECURITIES. Upon the Effective Date of the Merger, the Surviving Corporation
shall assume and continue any stock option plans (including the 1989 Stock
Option Plan and the UK Executive Share Option Scheme) and all other employee
benefit plans of Catapult California. As of the date hereof there are options
outstanding under the 1989 Stock Option Plan to purchase a total of 401,566
shares of Common Stock of Catapult California and options outstanding under
the UK Executive Share Option Scheme to purchase a total of 103,000 shares of
Common Stock of Catapult California. As of the date hereof, there are no
other options, purchase rights for or securities convertible into Common
Stock of Catapult California. Every two outstanding and unexercised options,
other rights to purchase or securities convertible into Catapult California
Common Stock shall become three options, rights to purchase or a securities
convertible into the Surviving Corporation's Common Stock on the basis of
three shares of the Surviving Corporation's Common Stock for every two shares
of Catapult California Common Stock issuable pursuant to any such option,
stock purchase right or convertible security, on the same terms and
conditions and at an exercise price per share equal to the exercise price
applicable to any such Catapult California option, stock purchase right or
other convertible security at the Effective Date of the Merger divided by
three and multiplied by two.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, stock purchase rights and
convertible securities (including
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Preferred Stock) equal to the number of shares of Catapult California Common
Stock so reserved immediately prior to the Effective Date of the Merger
multiplied by three and divided by two.
C. CATAPULT NEVADA COMMON STOCK. Upon the Effective Date of the
Merger, each share of Common Stock, $0.001 par value, of Catapult Nevada
issued and outstanding immediately prior thereto shall, by virtue of the
Merger and without any action by Catapult Nevada, the holder of such shares
or any other person, be canceled and returned to the status of authorized but
unissued shares.
D. EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of Catapult
California capital stock may, at such shareholder's option, surrender the
same for cancellation to the transfer agent and registrar for the Common
Stock of the Surviving Corporation, as exchange agent (the "Exchange Agent"),
and each such holder shall be entitled to receive in exchange therefor a
certificate or certificates representing the number of shares of the
appropriate class and series of the Surviving Corporation's capital stock
into which the surrendered shares were converted as herein provided. Until
so surrendered, each outstanding certificate theretofore representing shares
of Catapult California capital stock shall be deemed for all purposes to
represent the number of whole shares of the appropriate class and series of
the surviving corporation's capital stock into which such shares of Catapult
California capital stock were converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion
or otherwise accounted for to the surviving Corporation or the Exchange
Agent, have and be entitled to exercise any voting and other rights with
respect to and to receive dividends and other distributions upon the shares
of capital stock of the Surviving Corporation represented by such outstanding
certificate as provided above.
Each certificate representing capital stock of the Surviving Corporation
so issued in the Merger shall bear the same legends, if any, with respect to
the restrictions on transferability as the certificates of Catapult
California so converted and given in exchange therefor, unless otherwise
determined by the Board of Directors of the Surviving Corporation in
compliance with applicable laws.
If any certificate for shares of Catapult Nevada stock is to be issued
in a name other than that in which the certificate surrendered in exchange
therefor is registered, it shall be a condition of issuance thereof that the
certificate so surrendered shall be properly endorsed and otherwise in proper
form for transfer, that such transfer otherwise be proper and that the person
requesting such transfer pay to the Exchange Agent any transfer or other
taxes payable by reason of the issuance of such new certificate in a name
other than that of the registered holder of the certificate surrendered or
establish to the satisfaction of Catapult Nevada that such tax has been paid
or is not payable.
IV.
GENERAL
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A. COVENANTS OF CATAPULT NEVADA. Catapult Nevada covenants and agrees
that it will, on or before the Effective Date of the Merger:
1. Qualify to do business as a foreign corporation in the State
of California and in connection therewith irrevocably consent to service
of process directed to it upon its designated agent as required under
the provisions of Section 2105 of the California General Corporation Law;
2. File any and all documents with the California Franchise Tax
Board necessary for the assumption by Catapult Nevada of all of the
franchise tax liabilities of Catapult California; and
3. Take such other actions as may be required by the California
General Corporation Law.
B. FURTHER ASSURANCES. From time to time, as and when required by
Catapult Nevada or by its successors or assigns, there shall be executed and
delivered on behalf of Catapult California such deeds and other instruments,
and there shall be taken or caused to be taken by Catapult Nevada and
Catapult California such further and other actions, as shall be appropriate
or necessary in order to vest or perfect in or conform of record or otherwise
by Catapult Nevada the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Catapult California and otherwise to carry out the purposes of
this Agreement, and the officers and directors of Catapult Nevada are fully
authorized in the name and on behalf of Catapult California or otherwise to
take any and all such action and to execute and deliver any and all such
deeds and other instruments.
C. ABANDONMENT. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either Catapult California or
Catapult Nevada, or both, notwithstanding the approval of this Agreement by
the shareholders of Catapult California or by the sole stockholder of
Catapult Nevada, or by both.
D. AMENDMENT. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement
with the Secretaries of State of the States of California and Nevada,
provided that an amendment made subsequent to the adoption of this Agreement
by the shareholders of either Constituent Corporation shall not: (1) alter or
change the amount or kind of shares, securities, cash, property and/or rights
to be received in exchange for or on conversion of all or any of the shares
of any class or series thereof of such Constituent Corporation, (2) alter or
change any term of the articles of incorporation of the Surviving Corporation
to be effected by the Merger, or (3) alter or change any of the terms and
conditions of this Agreement if such alteration or change would adversely
affect the holders of any class of shares or series thereof of such
Constituent Corporation.
E. REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Nevada is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and GKL
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Statutory Agent & Filing Services, Inc. is the registered agent of the
Surviving Corporation at such address.
F. FIRPTA NOTIFICATION. (a) On the Effective Date, Catapult California
shall deliver to Catapult Nevada, as agent for the shareholders of Catapult
California, a properly executed statement (the "Statement") substantially in
the form attached hereto as EXHIBIT A. Catapult Nevada shall retain the
Statement for a period of not less than seven years and shall, upon request,
provide a copy thereof to any person that was a shareholder of Catapult
California immediately prior to the Merger. In consequence of the approval
of the Merger by the shareholders of Catapult California, as provided in
Recital D hereof, (i) such shareholders shall be considered to have requested
that the Statement be delivered to Catapult Nevada as their agent and (ii)
Catapult Nevada shall be considered to have received a copy of the Statement
at the request of the Catapult California shareholders for purposes of
satisfying Catapult Nevada's obligations under Treasury Regulation Section
1.1445-2(c)(3).
(b) Catapult California shall deliver to the Internal Revenue
Service a notice regarding the Statement in accordance with the requirements
of Treasury Regulation Section 1.897-2(h)(2).
G. EXPENSES. Each party to the transactions contemplated by this
Agreement (including, without limitation, Catapult California, Catapult
Nevada and their respective shareholders) shall pay its own expenses, if any,
incurred in connection with such transactions.
H. AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and copies thereof will be furnished
to any shareholder of either Constituent Corporation, upon request and
without cost.
I. GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Nevada and, so far as applicable, the merger provisions of the
California General Corporation Law.
J. COUNTERPARTS. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of Catapult Nevada and Catapult
California, is hereby executed on behalf of each of such two corporations by
their respective officers thereunto duly authorized.
CATAPULT COMMUNICATIONS CORPORATION,
a California corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇, Secretary
CATAPULT COMMUNICATIONS CORPORATION,
a Nevada corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇, Secretary
EXHIBIT A
Catapult Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
June 10, 1998
Assistant Commissioner (International)
Director, Office of Compliance
OP:I:C:E:666
▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
COMSAT Building
Washington, D.C. 20024
Re: Notice Required Under Treasury Regulation Section 1.897-2(h)(2)
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Ladies and Gentlemen:
At the request of Catapult Communications Corporation, a Nevada
corporation ("Catapult Nevada"), in connection with the reincorporation
merger of Catapult Communications Corporation, a California corporation
("Catapult California"), with and into Catapult Nevada in which Catapult
Nevada shall continue as the surviving corporation, we provided the attached
statement to Catapult Nevada on June 10, 1998.
(i) This notice is provided pursuant to the requirements of Treasury
Regulation Section 1.897-2(h)(2);
(ii) The following information relates to the corporation providing
the notice:
Name Catapult Communications Corporation
Address ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Taxpayer Identification Number ▇▇-▇▇▇▇▇▇▇
(iii) The attached statement was not requested by a foreign interest
holder. It was voluntarily provided by Catapult California in
response to a request from Catapult Nevada in accordance with
Treasury Regulation Section 1.1445-2(c)(3)(i). The following
information relates to Catapult Nevada which requested the
attached statement:
Name Catapult Communications Corporation
Address ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Taxpayer Identification Number ▇▇-▇▇▇▇▇▇▇
(iv) The interest in question (capital stock and rights to acquire
capital stock of Catapult California) is not a U.S. real property
interest.
Under penalties of perjury, the undersigned declares that the above
notice (including the attachment hereto) is correct to my knowledge and
belief.
Sincerely,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
President
Enclosure
Catapult Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
June 10, 1998
Catapult Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with the reincorporation merger of Catapult Communications
Corporation, a California corporation ("Catapult California"), with and into
Catapult Communications Corporation, a Nevada corporation ("Catapult
Nevada"), in which Catapult Nevada shall continue as the surviving
corporation, we are providing this representation letter and the attached
notice to you in order to establish that the shares and rights to acquire
shares of Catapult California are not a U.S. real property interest and
accordingly no withholding is required pursuant to Section 1445 of the
Internal Revenue Code of 1986, as amended (the "Code"). We represent that,
as of the date of this letter, no interest in Catapult California (other than
interests solely as a creditor) constitutes a United States real property
interest, as defined in Section 897 of the Code. This notice is provided to
you in accordance with Treasury Regulation Section 1.897-2(h) in response to
your request made pursuant to Treasury Regulation Section 1.1445-2(c)(3)(i).
This letter constitutes authorization for Catapult Nevada, as agent for
Catapult California, to deliver a copy of this letter, along with the
appropriate notification, to the Internal Revenue Service on behalf of
Catapult California.
Under penalties of perjury, the undersigned declares that the above
information is correct to the best of my knowledge and belief.
Sincerely,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
President
