AGREEMENT AND PLAN OF MERGER
OF ▇▇▇▇ SYSTEMS, INC.
A DELAWARE CORPORATION
AND
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of June 5, 1998, (the
"Agreement") is between ▇▇▇▇ Systems, Inc., a Delaware corporation
("▇▇▇▇-Delaware") and ▇▇▇▇ Systems, Inc., a California corporation
("▇▇▇▇-California"). ▇▇▇▇-Delaware and Ross-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 40,000,000
shares, 35,000,000 of which are designated "Common Stock," $.001 par value,
and 5,000,000 of which are designated "Preferred Stock", $.001 par value. As
of the date of this Agreement of Merger, 1,000 shares of Voting Common Stock
were issued and outstanding, all of which were held by Ross-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
42,000,000 shares, 37,000,000 of which are designated "Common Stock", no par
value, of which 35,000,000 are "Voting Common Stock" and 2,000,000 are
"Non-voting Common Stock" and 5,000,000 of which are designated "Preferred
Stock", no par value. As of October 1, 1997, the record dated fixed for
Ross-California's Annual Meeting of Shareholders, 19,248,909 shares of Common
Stock were issued and outstanding and 107 shares of Series E Preferred Stock
were issued and outstanding. As of the date of this Agreement of Merger,
20,659,190 shares of Common Stock were issued and outstanding.
C. The Board of Directors of Ross-California has determined that, for
the purpose of effecting the reincorporation of Ross-California in the State
of Delaware, it is advisable and in the best interests of Ross-California
that Ross-California merge with and into ▇▇▇▇-Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of ▇▇▇▇-Delaware and
Ross-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, ▇▇▇▇-Delaware and Ross-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,
Ross-California shall be merged with and into ▇▇▇▇-Delaware (the "Merger"),
the separate existence of Ross-California shall cease and ▇▇▇▇-Delaware shall
be, and is herein sometimes referred as, the "Surviving Corporation", and the
name of the Surviving Corporation shall be ▇▇▇▇ Systems, Inc.
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 Agreement and Plan of Merger meeting the
requirements of the Delaware General Corporation Law shall have been filed
with the Secretary of State of the State of Delaware; and
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 Ross-California shall cease and ▇▇▇▇-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 Ross-California's Board of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of
Ross-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
the debts, liabilities and obligations of ▇▇▇▇-Delaware 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
Ross-California in the same manner as if ▇▇▇▇-Delaware had itself incurred
them, all as more fully provided under the applicable provisions of the
Delaware General Corporation Law and the California Corporations Code.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
▇▇▇▇-Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect
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as the Certificate of Incorporation of the Surviving Corporation until duly
amended in accordance with the provisions thereof and applicable law.
2.2 CERTIFICATE OF DESIGNATIONS. The Certificate of Designations of
▇▇▇▇-Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Designations of the Surviving Corporation until duly amended in accordance
with the provisions thereof and applicable law.
2.3 BYLAWS. The Bylaws of ▇▇▇▇-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.
2.4 DIRECTORS AND OFFICERS. The directors and officers of
Ross-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 ROSS-CALIFORNIA COMMON SHARES. Upon the Effective Date of the
Merger, each share of Ross-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, $0.001 par value, of the Surviving
Corporation. No fractional share interests of Surviving Corporation Common
Stock shall be issued. In lieu thereof, any fractional share interests to
which a holder would otherwise be entitled shall be aggregated.
3.2 PREFERRED SHARES. Upon the Effective Date of the Merger, each
share of Ross-California Series E Preferred 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 Series A Preferred Stock, $0.001 par value, of the
Surviving Corporation. No fractional share interests of Surviving
Corporation Series A Preferred Stock shall be issued. In lieu thereof, any
fractional share interests to which a holder would otherwise be entitled
shall be aggregated.
3.3 ROSS-CALIFORNIA OPTIONS, STOCK PURCHASE RIGHTS AND CONVERTIBLE
SECURITIES.
(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of Ross-California under, and
continue, the option plans (including without limitation the 1988 Incentive
Stock Plan, the 1998 Incentive Stock Plan and the 1991 Employee Stock
Purchase Plan) and all other employee benefit plans. Each outstanding and
unexercised
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option, other right to purchase, or security convertible into,
Ross-California capital stock (a "Right") shall become, subject to the
provisions in paragraph (c) hereof, an option, right to purchase or a
security convertible into the Surviving Corporation's capital stock on the
basis of one share of the Surviving Corporation's capital stock for each one
share of Ross-California capital stock issuable pursuant to any such Right,
on the same terms and conditions and at an exercise price equal to the
exercise price applicable to any such Ross-California Right at the Effective
Date of the Merger. This paragraph 3.3(a) shall not apply to Ross-California
Common Stock or Preferred Stock. Such Common Stock and Preferred Stock
subject to paragraphs 3.1 and 3.2, respectively.
(b) A number of shares of the Surviving Corporation's capital
stock shall be reserved for issuance upon the exercise of options, stock
purchase rights and convertible securities equal to the number of shares of
Ross-California capital stock so reserved immediately prior to the Effective
Date of the Merger.
(c) The assumed Rights shall not entitle any holder thereof to a
fractional share upon exercise or conversion. In addition, no "additional
benefits" (within the meaning of Section 424(a)(2) of the Internal Revenue
Code of 1986, as amended) shall be accorded to the optionees pursuant to the
assumption of their options.
3.4 ▇▇▇▇-DELAWARE COMMON STOCK. Upon the Effective Date of the Merger,
each share of Common Stock, $.001 par value, of ▇▇▇▇-Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by ▇▇▇▇-Delaware, the holder of such shares or any other
person, be cancelled and returned to the status of authorized but unissued
shares.
3.5 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of
Ross-California Common Stock and Preferred Stock may be asked to surrender
the same for cancellation to Boston EquiServe (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 or Preferred Stock, as the case may be,
into which the surrendered shares were converted as herein provided. Until
so surrendered, each outstanding certificate theretofore representing shares
of Ross-California Common Stock and Preferred Stock shall be deemed for all
purposes to represent the number of shares of the Surviving Corporation's
Common Stock and Preferred Stock, respectively, into which such shares of
Ross-California Common Stock and Preferred Stock, as the case may be, 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 and Preferred Stock of the Surviving Corporation represented
by such outstanding certificate as provided above.
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Each certificate representing Common Stock and Preferred 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 Ross-California so converted and given in exchange therefore, unless
otherwise determined by the Board of Directors of the Surviving Corporation
in compliance with applicable laws.
If any certificate for shares of the Surviving Corporation's 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
comply with applicable securities laws 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 the Surviving Corporation that such tax has been paid or is
not payable.
IV. GENERAL
4.1 COVENANTS OF ▇▇▇▇-DELAWARE. ▇▇▇▇-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 ▇▇▇▇-Delaware of all of the franchise
tax liabilities of Ross-California.
(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
▇▇▇▇-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Ross-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 ▇▇▇▇-Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Ross-California and otherwise
to carry out the purposes of this Agreement, and the officers and directors
of ▇▇▇▇-Delaware are fully authorized in the name and on behalf of
Ross-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 Ross-California or of
Ross-Delaware, or of both, notwithstanding the approval
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of this Agreement by the shareholders of Ross-California or by the sole
stockholder of ▇▇▇▇-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 States of
California and 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 any Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and The Corporation Trust Company is the
registered agent of the Surviving Corporation at such address.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at
the principal place of business of the Surviving Corporation at Concourse
Corporate Center Two, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 FIRPTA NOTIFICATION. (a) On the Effective Date of the Merger,
Ross-California shall deliver to ▇▇▇▇-Delaware, as agent for the shareholders
of Ross-California, a properly executed statement (the "Statement")
substantially in the form attached hereto as Exhibit ▇. ▇▇▇▇-Delaware 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
Ross-California immediately prior to the Merger. In consequence of the
approval of the Merger by the shareholders of Ross-California, (i) such
shareholders shall be considered to have requested that the Statement be
delivered to ▇▇▇▇-Delaware as their agent and (ii) ▇▇▇▇-Delaware shall be
considered to have received a copy of the Statement at the request of the
▇▇▇▇-California shareholders for purposes of satisfying ▇▇▇▇-Delaware's
obligations under Treasury Regulation Section 1.1445-2(c)(3).
(b) Ross-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).
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4.9 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 the
resolutions of the Board of Directors of ▇▇▇▇-Delaware and Ross-California is
hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
▇▇▇▇ Systems, Inc.
a Delaware corporation
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant Secretary
▇▇▇▇ Systems, Inc.
a California corporation
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant Secretary
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EXHIBIT A
__________, 1998
TO THE SHAREHOLDERS OF ▇▇▇▇ SYSTEMS, INC.:
In connection with the reincorporation (the "Reincorporation") in
Delaware of ▇▇▇▇ Systems, Inc., a California corporation (the "Company"),
pursuant to the Agreement and Plan of Merger (the "Agreement") dated as of
June 5, 1998 between the Company and ▇▇▇▇ Systems, Inc., a Delaware
corporation and wholly-owned subsidiary of the Company ("▇▇▇▇-Delaware"),
your shares of Company stock will be replaced by shares of stock in
▇▇▇▇-Delaware.
In order to establish that (i) you will not be subject to tax under
Section 897 of the Internal Revenue Code of 1986, as amended (the "Code"), in
consequence of the Reincorporation and (ii) ▇▇▇▇-Delaware will not be
required under Section 1445 of the Code to withhold taxes from the
▇▇▇▇-Delaware stock that you will receive in connection therewith, the
Company hereby represents to you that, as of the date of this letter, shares
of Company stock do not constitute a "United States real property interest"
within the meaning of Section 897(c) of the Code and the regulations issued
thereunder.
A copy of this letter will be delivered to ▇▇▇▇-Delaware pursuant to
Section 4.8 of the Agreement.
Under penalties of perjury, the undersigned officer of the Company
hereby declares that, to the best knowledge and belief of the undersigned,
the facts set forth herein are true and correct.
Sincerely,
By: ----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Executive Officer
▇▇▇▇ SYSTEMS, INC.
A CALIFORNIA CORPORATION
OFFICERS' CERTIFICATE
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby certify that:
1. They are the President and Secretary, respectively, of ▇▇▇▇
Systems, Inc., a corporation organized under the laws of the State of
California.
2. The corporation has authorized two classes of stock, designated
"Common Stock" and "Preferred Stock," respectively.
3. There were 19,248,909 shares of Common Stock and 107 shares of
Series E Preferred Stock outstanding as of the record date (the "Record
Date") and were entitled to vote for the matters approved at the annual
meeting of the shareholders whereby the Agreement and Plan of Merger attached
hereto was approved. No Shares of non-voting Common Stock and no shares of
Series A, B, C or D Preferred Stock were outstanding as of the Record Date.
4. The principal terms of the Agreement and Plan of Merger were
approved by the Board of Directors and by the vote of a number of shares of
each class and series of stock which equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes
entitled to be cast by holders of Common Stock outstanding as of the Record
Date, and more than 50% of the votes entitled to be cast by holders of
Preferred Stock outstanding as of the Record Date.
We further declare under penalty of perjury under the laws of the States
of Delaware and California that we have read the foregoing certificate and
know the contents thereof and that the same is true and correct of our own
knowledge.
Executed in Atlanta, Georgia on June 5, 1998.
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary
▇▇▇▇ SYSTEMS, INC.
A DELAWARE CORPORATION
OFFICERS' CERTIFICATE
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ hereby certify that:
1. They are the President and Secretary, respectively, of ▇▇▇▇
Systems, Inc., a corporation organized under the laws of the State of
Delaware.
2. The corporation has authorized two classes of stock, designated
"Common Stock" and "Preferred Stock," respectively.
3. There are 1,000 shares of Common Stock outstanding and entitled to
vote on the Agreement and Plan of Merger attached hereto. There are no
shares of Preferred Stock outstanding.
4. The principal terms of the Agreement and Plan of Merger were
approved by the Board of Directors and by the vote of a number of shares of
each class and series of stock which equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes
entitled to be cast by holders of outstanding shares of Common Stock.
We further declare under penalty of perjury under the laws of the States
of Delaware and California that we have read the foregoing certificate and
know the contents thereof and that the same is true and correct of our own
knowledge.
Executed in Atlanta, Georgia on June 5, 1998.
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Secretary
