EXHIBIT 10.4
AGREEMENT AND PLAN OF MERGER OF
DISTRIBUTION SCIENCES, INC.
WITH AND INTO
LOGILITY, INC.
This Agreement and Plan of Merger (the "Agreement") is made and entered
into as of the 5th day of August, 1997 by and between LOGILITY, INC., a Georgia
corporation ("Logility"), and DISTRIBUTION SCIENCES, INC., a Georgia corporation
("DSI") (Logility and DSI being hereinafter sometimes collectively referred to
as the "Constituent Corporations").
W I T N E S S E T H:
WHEREAS, Logility is a corporation organized under the laws of the State
of Georgia with its principal office located at 000 Xxxx Xxxxx Xxxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000;
WHEREAS, Logility has authorized capital stock consisting of 20,000,000
shares of common stock, having no par value (the "Logility Common Stock"), of
which 1,000 shares are issued and outstanding;
WHEREAS, DSI is a corporation organized under the laws of the State of
Georgia with its principal office located at 000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000;
WHEREAS, DSI has authorized capital stock consisting of 10,000 shares of
common stock, $ .10 par value (the "DSI Common Stock"), of which 500 shares are
issued and outstanding;
WHEREAS, the laws of the State of Georgia permit a merger of the
Constituent Corporations;
WHEREAS, all of the issued and outstanding shares of DSI are held by
American Software USA, Inc., a Georgia corporation ("USA");
WHEREAS, all of the issued and outstanding shares of USA and of Logility
are held by American Software, Inc., a Georgia corporation ("ASI"); and
WHEREAS, the Boards of Directors of each of the Constituent Corporations
have determined that it is advisable and for the benefit of each of the
Constituent Corporations and of USA and ASI that DSI be merged with and into
Logility on the terms and conditions hereinafter set forth, and by resolutions
duly adopted have adopted the terms and conditions of this Agreement; and
directed that the proposed merger be submitted to USA and ASI, as the sole
shareholders of DSI and Logility, respectively, and recommended to each such
shareholder approval of the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises and of the
mutual agreements, promises and covenants contained herein, it is agreed by and
between the parties hereto, subject to the conditions hereinafter set forth and
in accordance with the Georgia Business Corporation Code (the "Code"), that DSI
shall be and hereby is, at the Effective Date (as hereinafter defined), merged
with and into Logility (with Logility subsequent to such merger being
hereinafter sometimes referred to as the "Surviving Corporation"), with the
corporate existence of the Surviving Corporation to be continued under the name
"Logility, Inc.", and that the terms and conditions of the merger hereby agreed
upon, the mode of carrying the same into effect, and the manner of converting
shares are and shall be as follows:
Section 1
Merger
1.1. On the Effective Date, DSI shall be merged with and into Logility,
Logility shall continue in existence and the merger shall in all respects have
the effect provided for in Section 14-2-1106 of the Georgia Business Corporation
Code.
1.2. Without limiting the foregoing, on and after the Effective Date, the
separate existence of DSI shall cease, and, in accordance with the terms of this
Agreement, the title to all real estate and other property owned by each of the
Constituent Corporations shall be vested in the Surviving Corporation without
reversion or impairment (including but not limited to the rights of DSI under
those contracts listed on Schedule 1 attached hereto); the Surviving Corporation
shall have all liabilities of each of the Constituent Corporations; and any
proceeding pending against any Constituent Corporation may be continued as if
the merger did not occur or the Surviving Corporation may be substituted in its
place.
1.3. Prior to and from and after the Effective Date, the Constituent
Corporations shall take all such actions as shall be necessary or appropriate in
order to effectuate the merger. If at any time the Surviving Corporation shall
consider or be advised that any further assignments or assurances in law or any
other actions are necessary, appropriate, or desirable to vest in the Surviving
Corporation, according to the terms hereof, the title to any property or rights
of DSI, the last acting officers of DSI, or the corresponding officers of the
Surviving Corporation, shall and will execute and make all such proper
assignments and assurances and take all action necessary and proper to vest
title in such property or rights in the Surviving Corporation, and otherwise to
carry out the purposes of this Agreement.
Section 2
Terms of Transaction
Upon the Effective Date:
(a) Given the sole ownership of USA and Logility by ASI, ASI deems it
advisable that each share of DSI Common Stock issued and outstanding immediately
prior to the Effective Date (all of which are owned by USA) shall, by virtue of
the merger and without any action on the part of the holder thereof, thereupon
be cancelled rather than converted into shares of Logility common stock so that
sole ownership of Logility remains in ASI, as parent of both USA and Logility.
(b) Each share of Logility Common Stock outstanding and owned of record
by the ASI immediately prior to the Effective Date shall continue to represent
one issued share of Common Stock of Logility, the Surviving Corporation.
Section 3
Directors and Officers
The persons who are directors and officers of Logility immediately prior
to the Effective Date shall continue as the directors and officers of the
Surviving Corporation and shall continue to hold office as provided in the
bylaws of the Surviving Corporation.
Section 4
Articles of Incorporation and Bylaws
4.1. From and after the Effective Date, the Articles of Incorporation of
Logility, as in effect at such date, shall be the Articles of Incorporation of
the Surviving Corporation and shall continue in effect until the same shall be
altered, amended, or repealed as therein provided or as provided by law.
4.2. From and after the Effective Date, the bylaws of Logility, in effect
at such date, shall be the bylaws of the Surviving Corporation and shall
continue in effect until the same shall be altered, amended, or repealed as
therein provided or as provided by law.
Section 5
Shareholder Approval; Effectiveness of Merger
This Agreement is hereby submitted for approval to each of ASI and USA,
as the sole shareholders of each of Logility and DSI, respectively, as provided
by the Code. Subject to the requisite consent of ASI and USA, a Certificate of
Merger incorporating the terms of this Agreement, shall be filed and recorded in
accordance with the laws of the State of Georgia as soon as practicable after
the approval by ASI and USA. The Board of Directors and the officers of the
Constituent Corporations are authorized, empowered and directed to do any and
all acts and things, and to make, execute, deliver, file, and record any and all
instruments, papers, and documents which shall be or become necessary, proper,
or convenient to carry out or put into
effect any of the provisions of this Agreement or of the merger herein provided
for. The merger shall become effective on the date on which a Certificate of
Merger referencing this Agreement is filed by the Secretary of State of Georgia
(said date is herein referred to as the "Effective Date").
Section 6
Miscellaneous
6.1. This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
6.2. This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia.
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate seals to be affixed and the
foregoing attested, all by their respective duly authorized officers, as of the
date hereinabove first written.
LOGILITY, INC.
By: /s/
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[SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
DISTRIBUTION SCIENCES, INC.
By: /s/
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[SEAL]
Approved and Consented to by:
American Software, Inc. as sole shareholder of Logility, Inc.
By: /s/
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Attest:
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[SEAL]
American Software USA, Inc. as sole shareholder of Distribution Sciences, Inc.
By: /s/
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Attest:
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[SEAL]
