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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of April 5, 1996, by and between Stac, Inc., a California
corporation ("Stac California"), and Stac, Inc., a Delaware corporation ("Stac
Delaware"). Stac California and Stac Delaware are sometimes referred to as the
"Constituent Corporations."
The authorized capital stock of Stac California consists of one hundred
ten million (110,000,000) shares, of which one hundred million (100,000,000)
shares are designated Common Stock, no par value, and ten million (10,000,000)
shares are designated Preferred Stock, no par value. The authorized capital
stock of Stac Delaware consists of one hundred million (100,000,000) shares of
Common Stock, $.001 par value, and ten million (10,000,000) shares of Preferred
Stock, $.001 par value per share.
The directors of the Constituent Corporations deem it advisable and to
the advantage of said corporations that Stac California merge into Stac Delaware
upon the terms and conditions herein provided.
Following the Merger (as defined below) the subsidiaries of Stac
California shall be the subsidiaries of Stac Delaware.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that Stac California
shall merge into Stac Delaware on the following terms, conditions and other
provisions:
1. TERMS AND CONDITIONS
1.1 MERGER. Stac California shall be merged with and into Stac Delaware
(the "Merger"), and Stac Delaware shall be the surviving corporation (the
"Surviving Corporation") effective at 10:00 a.m. (Pacific Daylight Time) on
April 9, 1996 (the "Effective Time").
1.2 SUCCESSION. At the Effective Time, Stac Delaware shall continue its
corporate existence under the laws of the State of Delaware, and the separate
existence and corporate organization of Stac California, except insofar as it
may be continued by operation of law, shall be terminated and cease.
1.3 TRANSFER OF ASSETS AND LIABILITIES. At the Effective Time, the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the Constituent Corporations; and all
and singular rights, privileges, powers and franchises of each of the
Constituent Corporations, and all property, real, personal and mixed, of each of
the Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations
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shall be transferred to and vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and all and every other
interest, shall be thereafter the property of the Surviving Corporation as they
were of the Constituent Corporations, and the title to any real estate vested by
deed or otherwise in either of the Constituent Corporations shall not revert or
be in any way impaired by reason of the Merger; provided, however, that the
liabilities of the Constituent Corporations and of their shareholders, directors
and officers shall not be affected and all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired, and any claim existing or action or proceeding pending by or against
either of the Constituent Corporations may be prosecuted to judgment as if the
Merger had not taken place except as they may be modified with the consent of
such creditors and all debts, liabilities and duties of or upon each of the
Constituent Corporations shall attach to the Surviving Corporation, and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it.
1.4 COMMON STOCK OF STAC CALIFORNIA AND STAC DELAWARE. At the Effective
Time, by virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, (i) each share of Common Stock
of Stac California issued and outstanding immediately prior thereto shall be
changed and converted into one fully paid and nonassessable share of Common
Stock of Stac Delaware; and (ii) each share of Common Stock of Stac Delaware
issued and outstanding immediately prior thereto shall be canceled and returned
to the status of authorized but unissued shares.
1.5 STOCK CERTIFICATES. At and after the Effective Time, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock of Stac California shall be deemed for all purposes to evidence
ownership of and to represent the shares of Stac Delaware into which the shares
of Stac California represented by such certificates have been converted as
herein provided and shall be so registered on the books and records of the
Surviving Corporation or its transfer agents. The registered owner of any such
outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or its transfer agent, have and be entitled to exercise
any voting and other rights with respect to and to receive any dividend and
other distributions upon the shares of Stac Delaware evidenced by such
outstanding certificate as above provided.
1.6 OPTIONS OF STAC CALIFORNIA. At the Effective Time, the Surviving
Corporation will assume and continue all of Stac California's stock option plans
in existence at the Effective Time, including without limitation all options
outstanding under such stock option plans and any other outstanding options,
shall become options to purchase the same number of shares of Common Stock of
Stac Delaware, with no other changes in the terms and conditions of such
options. Effective at the Effective Time, Stac Delaware hereby assumes the
outstanding and unexercised portions of such options and the obligations of Stac
California with respect thereto.
1.7 EMPLOYEE BENEFIT PLANS. At the Effective Time, the Surviving
Corporation shall assume all obligations of Stac California under any and all
employee benefit plans in effect as of
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the Effective Time with respect to which employee rights or accrued benefits are
outstanding as of such time, including but not limited to the Company's 401(k)
Plan provided, however, that one share Common Stock of Stac Delaware shall be
substituted for each share of Common Stock of Stac California (if any)
thereunder. At the Effective Time, the Surviving Corporation shall adopt and
continue in effect all such employee benefit plans upon the same terms and
conditions as were in effect immediately prior to the Merger and shall reserve
that number of shares of Stac Delaware Common Stock with respect to each such
employee benefit plan as is equal to the number of shares of Stac California
Common Stock (if any) so reserved at the Effective Time.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of Stac Delaware in effect at the Effective Time shall
continue to be the Certificate of Incorporation and Bylaws of the Surviving
Corporation.
2.2 DIRECTORS. The directors of Stac California immediately preceding
the Effective Time shall become the directors of the Surviving Corporation at
and after the Effective Time to serve until the expiration of their terms and
until their successors are elected and qualified.
2.3 OFFICERS. The officers of Stac California immediately preceding the
Effective Time shall become the officers of the Surviving Corporation at and
after the Effective Time to serve at the pleasure of its Board of Directors.
3. MISCELLANEOUS
3.1 FURTHER ASSURANCES. From time to time, and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of Stac California such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other action,
as shall be appropriate or necessary in order to vest or perfect in or to
conform of record or otherwise, in the Surviving Corporation the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Stac California and otherwise to
carry out the purposes of this Merger Agreement, and the officers and directors
of the Surviving Corporation are fully authorized in the name and on behalf of
Stac California or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
3.2 AMENDMENT. At any time before or after approval by the shareholders
of Stac California, this Merger Agreement may be amended in any manner (except
that, after the approval of the Merger Agreement by the shareholders of Stac
California, the principal terms may not be amended without the further approval
of the shareholders of Stac California) as may be determined in the judgment of
the respective Board of Directors of Stac Delaware and Stac California to be
necessary, desirable, or expedient in order to clarify the intention of the
parties hereto or to effect or facilitate the purpose and intent of this Merger
Agreement.
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3.3 CONDITIONS TO MERGER. The obligation of the Constituent
Corporations to effect the transactions contemplated hereby is subject to
satisfaction of the following conditions (any or all of which may be waived by
either of the Constituent Corporations in its sole discretion to the extent
permitted by law):
(a) the Merger shall have been approved by the shareholders of
Stac California in accordance with applicable provisions of the General
Corporation Law of the State of California; and
(b) Stac California, as sole stockholder of Stac Delaware, has
approved the Merger in accordance with the General Corporation Law of the State
of Delaware; and
(c) any and all consents, permits, authorizations, approvals,
and orders deemed in the sole discretion of Stac California to be material to
consummation of the Merger shall have been obtained.
3.4 ABANDONMENT OR DEFERRAL. At any time before the Effective Time,
this Merger Agreement may be terminated and the Merger may be abandoned by the
Board of Directors of either Stac California or Stac Delaware or both,
notwithstanding the approval of this Merger Agreement by the shareholders of
Stac California or Stac Delaware or the prior filing of this Merger Agreement
with the Secretary of State of the State of Delaware, or the consummation of the
Merger may be deferred for a reasonable period of time if, in the opinion of the
Boards of Directors of Stac California and Stac Delaware, such action would be
in the best interest of such corporations. In the event of termination of this
Merger Agreement, this Merger Agreement shall become void and of no effect and
there shall be no liability on the part of either Constituent Corporation or its
Board of Directors or shareholders with respect thereto, except that Stac
California shall pay all expenses incurred in connection with the Merger or in
respect of this Merger Agreement or relating thereto.
3.5 COUNTERPARTS. In order to facilitate the filing and recording of
this Merger Agreement, the same may be executed in any number of counterparts,
each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, this Merger Agreement, having first been fully
approved by the Board of Directors of Stac California and Stac Delaware, is
hereby executed on behalf of each said corporation and attested by their
respective officers thereunto duly authorized.
STAC, INC.,
a California corporation
By: /s/ XXXX X. XXXX
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Xxxx X. Xxxx, President and
Chief Executive Officer
ATTEST:
Xxxx X. Xxxxxx, Vice President of
Finance, Chief Financial Officer and
Secretary
STAC, INC.,
a Delaware Corporation
By: /S/ XXXX X. XXXX
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Xxxx X. Xxxx, President and
Chief Executive Officer
ATTEST:
Xxxx X. Xxxxxx, Vice President of
Finance, Chief Financial Officer and
Secretary
