AGREEMENT AND PLAN OF MERGER
OF ONTRAK SYSTEMS, INC.,
A DELAWARE CORPORATION,
AND
ONTRAK SYSTEMS, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of November 6, 1996 (the
"Agreement") is between OnTrak Systems, Inc., a Delaware corporation ("OnTrak
Delaware"), and OnTrak Systems, Inc., a California corporation ("OnTrak
California"). OnTrak Delaware and OnTrak California are sometimes referred to
herein as the "Constituent Corporations."
RECITALS
A. OnTrak Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 30,000,000 shares
of "Common Stock," $0.0001 par value, and 3,000,000 shares of "Preferred Stock,"
$0.0001 par value. As of November 6, 1996, 100 shares of Common Stock were
issued and outstanding, all of which are held by OnTrak California.
B. OnTrak California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 30,000,000
shares of "Common Stock," no par value, and 3,000,000 shares of "Preferred
Stock," no par value. As of November 6, 1996, 7,530,915 shares of Common Stock
and no shares of Preferred Stock were issued and outstanding.
C. The Board of Directors of OnTrak California has determined that, for
the purpose of effecting the reincorporation of OnTrak California in the State
of Delaware, it is advisable and in the best interests of OnTrak California that
OnTrak California merge with and into OnTrak Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of OnTrak Delaware and OnTrak
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective stockholders and executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, OnTrak Delaware and OnTrak California hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
I.
MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
OnTrak California shall be merged with and into OnTrak Delaware (the "Merger"),
the separate existence of OnTrak California shall cease and OnTrak Delaware
shall be, and is herein sometimes referred to as, the "Surviving Corporation,"
and the name of the Surviving Corporation shall be OnTrak Systems, Inc.
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when the
following actions shall have been completed:
(A) This Agreement and the Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the California
General Corporation Law;
(B) 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;
(C) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Delaware General Corporation Law
shall have been filed with the Secretary of State of the State of Delaware; and
(D) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the California General Corporation
Law shall have been filed with the Secretary of State of the State of
California.
The Merger shall become effective on November 22, 1996, or such later date
as the foregoing actions have been completed (the "Effective Date of the
Merger").
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of OnTrak California shall cease and OnTrak Delaware, 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
OnTrak California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of OnTrak California
in the manner as more fully set forth in Section 259 of the Delaware 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 OnTrak California in the same manner as if
OnTrak Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the California
General Corporation Law.
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II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
OnTrak Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of OnTrak Delaware 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.
2.3 DIRECTORS AND OFFICERS. The directors and officers of OnTrak Delaware
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III.
MANNER OF CONVERSION OF STOCK
3.1 ONTRAK CALIFORNIA COMMON STOCK. Upon the Effective Date of the Merger,
each share of OnTrak California Common Stock, no par value, 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 one fully paid and
nonassessable share of Common Stock, $.0001 par value, of the Surviving
Corporation.
3.2 ONTRAK CALIFORNIA OPTIONS. Upon the Effective Date of the Merger, the
Surviving Corporation shall assume and continue, on the terms provided therein,
the OnTrak Systems, Inc. 401(k) Plan, stock option and stock purchase plans
(including the 1992 Stock Option Plan, as amended, the 1995 Director Stock
Option Plan, and the 1995 Employee Stock Purchase Plan) and all other employee
benefit plans of OnTrak California. Each outstanding and unexercised option to
purchase OnTrak California Common Stock shall become an option to purchase the
Surviving Corporation's Common Stock on the basis of one share of the Surviving
Corporation's Common Stock for each share of OnTrak California Common Stock
issuable pursuant to any such option to purchase on the same terms and
conditions and at an exercise price per share equal to the exercise price
applicable to any such OnTrak California option at the Effective Date of the
Merger.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the conversion or exercise of options equal to the
number of shares of OnTrak California Common Stock so reserved immediately prior
to the Effective Date of the Merger.
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3.3 ONTRAK DELAWARE COMMON STOCK. Upon the Effective Date of the Merger,
each share of Common Stock, $.0001 par value, of OnTrak Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by OnTrak Delaware, the holder of such shares or any other person, be
cancelled and returned to the status of authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of OnTrak California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to The First National Bank of Boston, 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
Surviving Corporation's Common Stock into which the surrendered shares were
converted as herein provided. Until so surrendered, each outstanding
certificate theretofore representing shares of OnTrak California Common Stock
shall be deemed for all purposes to represent the number of shares of the
Surviving Corporation's Common Stock into which such shares of OnTrak California
Common 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 Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common 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 OnTrak 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 OnTrak Delaware 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 OnTrak Delaware that such tax has been paid or is not payable.
IV.
GENERAL
4.1 COVENANTS OF ONTRAK DELAWARE. OnTrak Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
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(A) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for service
of process as required under the provisions of Section 2105 of the California
General Corporation Law;
(B) File any and all documents with the California Franchise Tax
Board necessary for the assumption by OnTrak Delaware of all of the franchise
tax liabilities of OnTrak California; and
(C) Take such other actions as may be required by the California
General Corporation Law.
4.2 FURTHER ASSURANCES. From time to time, as and when required by OnTrak
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of OnTrak California such deeds and other instruments, and there shall
be taken or caused to be taken by it 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 OnTrak Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of OnTrak California and otherwise to carry out the purposes of this
Agreement, and on or after the Effective Date the officers and directors of
OnTrak Delaware are fully authorized in the name and on behalf of OnTrak
California or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
4.3 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 OnTrak California or OnTrak
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of OnTrak California or by the sole stockholder of OnTrak Delaware,
or by both.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Agreement by the stockholders 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 Certificate 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 or series thereof of such Constituent
Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving Corporation
in the State of Delaware is located at 1013 Centre Road, in the City of
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County of New Castle, and The ▇▇▇▇▇▇▇▇-▇▇▇▇
Corporation System, Inc. is the registered agent of the Surviving Corporation at
such address.
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4.6 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
stockholder of either Constituent Corporation, upon request and without cost.
4.7 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 Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4.8 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.
IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of OnTrak Delaware and OnTrak California,
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
ATTEST: ONTRAK SYSTEMS, INC.,
a Delaware corporation
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- -------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and
Chief Executive Officer
ATTEST: ONTRAK SYSTEMS, INC.,
a California corporation
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- -------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and
Chief Executive Officer
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