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AGREEMENT OF MERGER
OF
C ACQUISITION CORP.
WITH AND INTO
CUSTOMER FOCUS INTERNATIONAL, INC.
This Agreement of Merger ("Agreement") is entered into as of January
26, 1998 by and between C Acquisition Corp., a Delaware corporation ("Newco")
(nonsurvivor) that is a wholly-owned subsidiary of Prism Solutions, Inc., a
Delaware corporation ("Prism"), and Customer Focus International, Inc., a
California corporation ("CFI") (survivor).
1. Effective Time of Merger. Pursuant to the California
Corporations Code and the Law of the State of Delaware, Newco will be merged
with and into CFI in a reverse triangular merger (the "Merger"), with CFI to be
the surviving corporation of the Merger. The Merger will be effective (the
"Effective Time") on January __, 1998, the date on which a copy of this
Agreement and all required officers' certificates and other appropriate
documents are filed with the Secretary of State of California.
2. Conversion of Securities.
(a) Conversion of CFI Shares. At the Effective Time,
each share of CFI Common Stock, no par value ("CFI Common Stock"), issued and
outstanding immediately prior to the Effective Time, will, by virtue of the
Merger and without further action on the part of any holder thereof, be
converted into 0.2807317 shares of fully paid and nonassessable shares of Prism
Common Stock, $0.001 par value ("Prism Common Stock"). No fractional shares of
Prism Common Stock will be issued in connection with the Merger, but in lieu
thereof, Prism will pay an amount of cash equal to the average closing price of
Prism Common Stock for the five business days preceding the day prior to the
Effective Time ("Closing Price") multiplied by the fraction of a share of Prism
Common Stock to which such holder would otherwise be entitled.
(c) Escrow Shares. Pursuant to the Escrow Agreement, at
the closing of the Merger, Prism or its exchange agent will (i) deduct, pro
rata, from the shares of Prism Common Stock that would otherwise be delivered
to former holders of CFI Common Stock (the "Shareholders") that number of
shares representing ten percent (10%) of the total number of shares of Prism
Common Stock issued to them in the Merger, and (ii) deliver on behalf of the
Shareholders certificates representing the shares thus withheld to State Street
Bank and Trust Company, as escrow agent (the "Escrow Agent"). The shares of
Prism Common Stock withheld pursuant to this Section 2(c) at the closing of the
Merger (the "Escrow Shares") will be held in escrow pursuant to a separate
Escrow Agreement to secure the indemnification obligations of the Shareholders.
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(d) Surrender and Exchange of Outstanding Certificates.
Each certificate which immediately before the Effective Time evidenced shares
of CFI Common Stock will, from and after the Effective Time until such
certificate is surrendered to Prism or its transfer agent, be deemed, for all
corporate purposes, to evidence the right to receive the consideration
described above (subject to the terms and conditions of the Escrow Agreement);
provided, however, that until such certificate is so surrendered by a
Shareholder, no dividend or other distribution payable to such Shareholder
after the Effective Time will be paid in respect of the shares of Prism Common
Stock represented by such certificate. Upon surrender, all dividends and
distributions, if any, therefore declared and accrued but unpaid in respect of
such shares, will be paid. The Shareholders will be requested to surrender to
Prism or its transfer agent, as soon as practicable after the Effective Time,
the certificate or certificates representing all the shares of CFI Common Stock
issued and outstanding immediately prior to the Effective Time. Upon such
surrender, the Shareholders will be entitled to receive certificate(s)
evidencing ownership of the shares of Prism Common Stock which are deemed to be
represented by the certificate or certificates surrendered (which do not
include the Escrow Shares). As soon as practicable following such surrender
Prism or its transfer agent will issue to the Shareholders such certificate(s).
3. Conversion of Newco Shares. Each share of Newco Common Stock,
$0.01 par value ("Newco Common Stock") that is issued and outstanding
immediately prior to the Effective Time, by virtue of the Merger and without
further action on the part of the sole stockholder of Newco, will be converted
into and become one (1) share of CFI Common Stock that is issued and
outstanding immediately after the Effective Time, and the shares of CFI Common
Stock into which the shares of Newco Common Stock are so converted shall be the
only shares of CFI Stock that are issued and outstanding immediately after the
effective time.
4. Plan. Prism, Newco, CFI, and, with respect to the provisions
of Articles 2, 10, and 11 only, the Shareholders are parties to the Agreement
and Plan of Reorganization dated as of January 26, 1998 (the "Plan"). The Plan
and this Agreement are intended to be construed together in order to effectuate
their purposes.
5. Effects of Merger. At the Effective Time: (a) the separate
existence of Newco will cease and Newco will be merged with and into CFI and
CFI will be the surviving corporation pursuant to the terms of this Agreement;
(b) the Articles of Incorporation of CFI will be amended as attached hereto as
Exhibit A and the Bylaws of CFI will be amended to read as set forth in Exhibit
1.4B to the Plan as the Articles of Incorporation and Bylaws of the surviving
corporation; (c) each share of CFI Common Stock outstanding immediately prior
to the Effective Time will be converted as provided in Section 2 of this
Agreement; (d) each share of Newco Common Stock outstanding immediately prior
to the Effective Time will be converted into one (1) outstanding share of CFI
Common Stock; (e) Xxxxx X. Xxxx will be appointed Vice President - Managing
Director, Financial Applications Business Unit and will be appointed to the
Board of Directors of Prism, with the Board of Directors and executive officers
of Prism otherwise remaining unchanged and the sole director of Newco
immediately prior to the Effective Time will become the sole director of the
surviving corporation and the officers of Newco will become the officers of the
surviving corporation; and (f) the Merger will, at and after the Effective
Time, have all of the effects provided by applicable law.
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6. Further Assignments. After the Effective Time, CFI and its
officers and directors may execute and deliver such deeds, assignments and
assurances and do all other things necessary or desirable to vest, perfect or
confirm title to Newco's property or rights in CFI and otherwise to carry out
the purposes of the Plan in the name of Newco or otherwise.
7. Termination. This Agreement may be terminated and the
proposed Merger abandoned at any time prior to the Effective Time, whether
before or after approval of this Agreement by the Shareholders of CFI, by
either party hereto upon termination of the Plan or by the mutual consent of
the Boards of Directors of Newco and CFI.
8. No Dissenters Rights. No holder of shares of CFI Common Stock
has complied with the requirements set forth in California law, and,
accordingly, no such holder will be entitled to, dissenter's rights under the
California law in respect of the Merger.
9. Assignment. Neither party hereto may assign any of its rights
or obligations hereunder without the prior written consent of the other party
hereto. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors, personal representatives and
permitted assigns.
10. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and to be performed wholly within the State of
California without regard to principles of conflict of laws.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date and year first above written.
C ACQUISITION CORP. CUSTOMER FOCUS
INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxx By: /s/Xxxxx X. Xxxx
------------------------------------- --------------------------------
Xxxx Xxxxxxx, President and Secretary Xxxxx X. Xxxx, President and
Secretary
By: /s/ Xxxxx Xxxx
--------------------------------
Xxxxx Xxxx, Secretary
SIGNATURE PAGE TO
NEWCO/CFI AGREEMENT OF MERGER
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EXHIBIT A
ARTICLES OF INCORPORATION
OF
CUSTOMER FOCUS INTERNATIONAL, INC.
ARTICLE I
The name of the corporation is Customer Focus International, Inc.
ARTICLE II
The purpose of the corporation is to engage in any lawful act or activity
for which a corporation may be organized under the California Corporations Code
other than the banking business, the trust company business or the practice of
a profession permitted to be incorporated by the California Corporations Code.
ARTICLE III
The liability of the directors of the corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
Unless applicable law otherwise provides, any amendment, repeal or modification
of this Article III shall not adversely affect any right of any director under
this Article III that existed at or prior to the time of such amendment, repeal
or modification.
ARTICLE IV
The corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, by agreements with agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the applicable
limits on such excess indemnification set forth in Section 204 of the
California Corporations Code. Unless applicable law otherwise provides, any
amendment, repeal or modification of any provision of this Article IV shall not
adversely affect any contract or other right to indemnification of any agent of
the corporation that existed at or prior to the time of such amendment, repeal
or modification.
ARTICLE V
The corporation is authorized to issue only one class of shares of stock,
which shall be designated "Common Stock" and which shall have no par value.
The total number of shares of Common Stock the corporation is authorized to
issue is 1,000 shares.
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CERTIFICATE OF APPROVAL OF MERGER
OF
C ACQUISITION CORP.
WITH AND INTO
CUSTOMER FOCUS INTERNATIONAL, INC.
Xxxx Xxxxxxx hereby certifies that:
1. He is the President and Secretary of C ACQUISITION CORP., a
Delaware corporation (the "Corporation"). The Corporation is the NONSURVIVOR.
2. The Agreement of Merger to which this certificate is attached
(the "Agreement of Merger"), after having been first duly approved by the Board
of Directors of the Corporation on January 23, 1998 and by the written consent
of the sole stockholder of the Corporation as of January 23, 1998, was duly
signed on behalf of the Corporation by the undersigned.
3. The Corporation has authorized capital stock consisting of
100 shares of Common Stock, $0.001 par value. The total number of outstanding
shares of the Corporation's capital stock entitled to vote on the Agreement of
Merger was 100 shares of Common Stock.
4. The percentage vote required to approve the Agreement of
Merger was the affirmative vote of at least a majority of the outstanding
shares of the Corporation's capital stock.
5. The Agreement of Merger was approved by the vote of a number
of shares of the Corporation's capital stock which equaled or exceeded the vote
required.
6. No vote of the stockholders of Prism Solutions, Inc., a
Delaware corporation of which the Corporation is a wholly-owned subsidiary, was
required.
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I further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of my own knowledge.
Dated: January __, 1998.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Xxxx Xxxxxxx, President
and Secretary
SIGNATURE PAGE TO CERTIFICATE OF APPROVAL OF MERGER
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CERTIFICATE OF APPROVAL OF MERGER
OF
C ACQUISITION CORP.
WITH AND INTO
CUSTOMER FOCUS INTERNATIONAL, INC.
Xxxxx X. Xxxx hereby certifies that:
1. He is the President and Chief Financial Officer of CUSTOMER
FOCUS INTERNATIONAL, INC., a California corporation ("CFI"). CFI is the
SURVIVOR.
2. The Agreement of Merger to which this certificate is attached,
after having been first duly approved by the Board of Directors on January 26,
1998 and by the unanimous written consent of the holders of the outstanding
capital stock of CFI on January 26, 1998, was duly signed on behalf of CFI by
the undersigned.
3. CFI has authorized capital stock consisting of 15,000,000
shares of Common Stock, no par value. The total number of outstanding shares
of CFI's capital stock entitled to vote on the Agreement of Merger was
10,250,000 shares of Common Stock.
4. The percentage vote required to approve the Agreement of
Merger was the affirmative vote of at least a majority of the outstanding
shares of CFI's capital stock.
5. The Agreement of Merger was approved by the vote of a number
of shares of CFI's capital stock which equaled or exceeded the vote required.
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We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Dated: January __, 1998.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, President Xxxxx X. Xxxx, Secretary
SIGNATURE PAGE TO CERTIFICATE OF APPROVAL OF MERGER
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