EXHIBIT A
AGREEMENT AND PLAN OF MERGER
OF TOUCHSTONE SOFTWARE CORPORATION,
A DELAWARE CORPORATION,
AND
TOUCHSTONE SOFTWARE CORPORATION,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of December __, 1996 (the
"Agreement") is between TouchStone Software Corporation, a Delaware corporation
("TouchStone Delaware"), and Touchstone Software Corporation, a California
corporation ("TouchStone California"). TouchStone Delaware and TouchStone
California are sometimes referred to herein as the "Constituent Corporations."
R E C I T A L S
▇. ▇▇▇▇▇▇▇▇▇▇ Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 23,000,000
shares, 20,000,000 of which are designated "Common Stock," $.001 par value, and
3,000,000 of which are designated "Preferred Stock," $.001 par value. As of
December __, 1996, 100 shares of Common Stock were issued and outstanding, all
of which were held by TouchStone California. No shares of Preferred Stock were
outstanding.
▇. ▇▇▇▇▇▇▇▇▇▇ California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 23,000,000
shares, 20,000,000 of which are designated "Common Stock," $.001 par value, and
3,000,000 of which are designated "Preferred Stock," $.001 par value. As of
December __, 1996, __________ shares of Common Stock and no shares of Preferred
Stock were outstanding.
C. The Board of Directors of TouchStone California has determined that, for
the purpose of effecting the reincorporation of TouchStone California in the
State of Delaware, it is advisable and in the best interests of TouchStone
California that TouchStone California merge with and into TouchStone Delaware
upon the terms and conditions herein provided.
D. The respective Boards of Directors of TouchStone Delaware and TouchStone
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, TouchStone Delaware and TouchStone 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,
TouchStone California shall be merged with and into TouchStone Delaware (the
"Merger"), the separate existence of TouchStone California shall cease and
TouchStone Delaware shall be, and is herein sometimes referred to as, the
"Surviving Corporation," and the name of the Surviving Corporation shall be
TouchStone.
1.2 Filing and Effectiveness. The Merger shall become effective when the
following actions shall have been completed:
(a) This Agreement and 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 date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of TouchStone California shall cease and TouchStone 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 TouchStone California's Board of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of TouchStone
California in the manner 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 TouchStone California in the same manner
as if TouchStone 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.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
TouchStone 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 TouchStone 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 TouchStone
California 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 TouchStone California Common Shares. Upon the Effective Date of the
Merger, each share of TouchStone California Common Stock, $.001 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, $.001 par value, of the Surviving
Corporation.
3.2 TouchStone California Options and Stock Purchase Rights. Upon the
Effective Date of the Merger, the Surviving Corporation shall assume and
continue the stock option plans and all other employee benefit plans of
TouchStone California. Each outstanding and unexercised option, or other right
to purchase, or security convertible into, TouchStone California Common Stock
shall become an option, or right to purchase, or a security convertible into the
Surviving Corporation's Common Stock on the basis of one share of the Surviving
Corporation's Common Stock for each share of TouchStone California Common Stock
issuable pursuant to any such option, or stock purchase right or convertible
security, on the same terms and conditions and at an exercise or conversion
price per share equal to the exercise or conversion price per share applicable
to any such TouchStone California option, stock purchase right or other
convertible security at the Effective Date of the Merger. Any outstanding
options, purchase rights for or securities convertible into the Preferred Stock
of TouchStone California shall become an option, or right to purchase or a
security convertible into the Preferred Stock of the Surviving Corporation on
the same terms and conditions and at an exercise or conversion price per share
equal to the exercise or conversion price per share applicable to such
TouchStone California option, stock purchase right or other convertible security
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 exercise of options, stock purchase rights and
convertible securities equal to the number of shares of TouchStone California
Common Stock so reserved immediately prior to the Effective Date of the Merger.
3.3 TouchStone Delaware Common Stock. Upon the Effective Date of the
Merger, each share of TouchStone Delaware Common Stock, $.001 par value, issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by TouchStone 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 TouchStone
California Common Stock may, at such stockholder's option, surrender the same
for cancellation to Manufacturers Hanover Trust Company, 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 TouchStone California Common Stock shall be
deemed for all purposes to represent the number of whole shares of the Surviving
Corporation's Common Stock into which such shares of TouchStone 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 TouchStone 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 TouchStone 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 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 TouchStone Delaware that such tax has been paid or is not
payable.
IV. GENERAL
4.1 Covenants of TouchStone Delaware. TouchStone Delaware covenants and
agrees that it will, on or before the Effective Date of the Merger:
(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 TouchStone Delaware of all of the franchise tax
liabilities of TouchStone 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
TouchStone Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of TouchStone 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 TouchStone Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of TouchStone California and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of TouchStone Delaware are fully authorized in the name and on behalf
of TouchStone 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 TouchStone California or of
TouchStone Delaware, or of both, notwithstanding the approval of this Agreement
by the shareholders of TouchStone California or by the sole stockholder of
TouchStone 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 of capital stock of either
Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving Corporation
in the State of Delaware is located at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ of Kent and the registered agent of the Surviving Corporation
at such address is The ▇▇▇▇▇▇▇▇- ▇▇▇▇ Corporation System, Inc.
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.
4.9 Adoption and Approval by Stockholders. This Agreement and Merger have
been approved by the stockholders of the Constituent Corporations in accordance
with the requirements of the Delaware General Corporation Law and the California
General Corporation Law.
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of TouchStone Software Corporation, a
Delaware corporation, and TouchStone Software Corporation, a California
corporation, is hereby executed on behalf of each of their respective officers
thereunto duly authorized.
TOUCHSTONE SOFTWARE CORPORATION,
a Delaware corporation
By: ______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and
Chief Executive Officer
ATTEST:
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Chief Financial Officer and
Secretary
TOUCHSTONE SOFTWARE CORPORATION,
a California corporation
By: ______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and
Chief Executive Officer
ATTEST:
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Chief Financial Officer and
Secretary
