EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF OBJECTIVE SYSTEMS INTEGRATORS, INC.,
A DELAWARE CORPORATION,
AND
OBJECTIVE SYSTEMS INTEGRATORS, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of January 28, 1997 (the
"Agreement") is between Objective Systems Integrators, Inc., a Delaware
corporation ("OSI Delaware"), and Objective Systems Integrators, Inc., a
California corporation ("OSI California"). OSI Delaware and OSI California are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. OSI Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 105,000,000
shares, $.001 par value, of which 100,000,000 shares are designated "Common
Stock," and 5,000,000 shares are designated "Preferred Stock." The Preferred
Stock of OSI Delaware is undesignated as to series, rights, preferences,
privileges or restrictions. As of January 28, 1997, 100 shares of Common Stock
were issued and outstanding, all of which are held by OSI California, and no
shares of Preferred Stock were issued and outstanding.
B. OSI California is a corporation duly organized and existing under the
laws of the State of California and has an authorized capital of 55,000,000
shares, no par value, of which 50,000,000 are designated "Common Stock," and
5,000,000 shares are designated "Preferred Stock." The Preferred Stock of OSI
California is undesignated as to series, rights, preferences, privileges or
restrictions. As of January 15, 1997, 32,308,059 shares of Common Stock were
issued and outstanding, and no shares of Preferred Stock were issued and
outstanding.
C. The Board of Directors of OSI California has determined that, for the
purpose of effecting the reincorporation of OSI California in the State of
Delaware, it is advisable and in the best interests of OSI California and its
shareholders that OSI California merge with and into OSI Delaware upon the terms
and conditions herein provided.
D. The respective Boards of Directors of OSI Delaware and OSI California
have approved this Agreement and have directed that this Agreement be submitted
to a vote of their respective shareholders and executed by the undersigned
officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, OSI Delaware and OSI 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
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Delaware General Corporation Law and the California General Corporation Law, OSI
California shall be merged with and into OSI Delaware (the "Merger"), the
separate existence of OSI California shall cease and OSI Delaware shall survive
the Merger and shall continue to be governed by the laws of the State of
Delaware, and OSI Delaware shall be, and is herein sometimes referred to as, the
"Surviving Corporation," and the name of the Surviving Corporation shall be
Objective Systems Integrators, Inc.
1.2 Filing and Effectiveness. The Merger shall become effective when the
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following actions shall have been completed:
(a) This Agreement and the Merger was adopted and approved by the
shareholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the California
General Corporation Law on October 14, 1996 and November 14, 1996,
respectively;
(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, acknowledged and
certified 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
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separate existence of OSI California shall cease and OSI 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 OSI
California's Boards of Directors, (iii) shall succeed, without other transfer,
to all of the assets, rights, powers and property of OSI 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 OSI California in the same manner as if
OSI Delaware had itself incurred
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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 OSI
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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 OSI Delaware as in effect immediately prior to
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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 OSI California
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immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their respective successors shall
have been duly elected and qualified or until as otherwise provided by law, or
the Certificate of Incorporation of the Surviving Corporation or the Bylaws of
the Surviving Corporation.
III
MANNER OF CONVERSION OF STOCK
3.1 OSI California Common Stock. Upon the Effective Date of the Merger,
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each share of OSI 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 changed and converted into and exchanged for one fully paid and nonassessable
share of Common Stock, $.001 par value, of the Surviving Corporation.
3.2 OSI California Options and Stock Purchase Rights. Upon the Effective
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Date of the Merger, the Surviving Corporation shall assume and continue the
stock option plans (including without limitation the Stock Option Plan, the 1994
Stock Option Plan, and the 1995 Directors Option Plan) and all other employee
benefit plans (including without limitation the 1995 Employee Stock Purchase
Plan) of OSI California. Each outstanding and unexercised option or other right
to purchase or security convertible into OSI 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 OSI California Common Stock
issuable pursuant to any such option, stock purchase right or convertible
security, on the same terms and conditions and at an exercise price per share
equal to the exercise price applicable to any such OSI California option, stock
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purchase right or convertible security at the Effective Date of the Merger.
There are no options, purchase rights for or securities convertible into
Preferred Stock of OSI California.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, stock purchase rights or
convertible securities equal to the number of shares of OSI California Common
Stock so reserved immediately prior to the Effective Date of the Merger.
3.3 OSI Delaware Common Stock. Upon the Effective Date of the Merger,
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each share of Common Stock, $.001 par value, of OSI Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by OSI Delaware, the holder of such shares or any other person, be
canceled and returned to the status of authorized but unissued shares.
3.4 Exchange of Certificates. After the Effective Date of the Merger,
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each holder of an outstanding certificate representing shares of OSI California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services, Inc. 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 such holders' shares of OSI
California Common Stock were converted as herein provided. Unless and until so
surrendered, each outstanding certificate theretofore representing shares of OSI
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 OSI 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 shares of stock represented by 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 OSI 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 OSI 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 OSI Delaware or 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 OSI Delaware that such tax has been paid or is not
payable.
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IV
GENERAL
4.1 Covenants of OSI Delaware. OSI Delaware covenants and agrees that it
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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 OSI Delaware of all of the franchise tax
liabilities of OSI 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 OSI
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Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of OSI California such deeds and other instruments, and there shall be
taken or caused to be taken by OSI Delaware and OSI California 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 OSI Delaware the title to and possession
of all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of OSI California and otherwise to carry out the
purposes of this Agreement, and the officers and directors of OSI Delaware are
fully authorized in the name and on behalf of OSI 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 filing of this Agreement with the
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Secretary of State of the State of Delaware, this Agreement may be terminated
and the Merger may be abandoned for any reason whatsoever by the Board of
Directors of either OSI California or OSI Delaware, or both, notwithstanding the
approval of this Agreement by the shareholders of OSI California or by the sole
stockholder of OSI Delaware, or by both.
4.4 Amendment. The Boards of Directors of the Constituent Corporations
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may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretaries of State of the States of
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the shareholders 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 of shares or series thereof of
such Constituent Corporation.
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4.5 Registered Office. The registered office of the Surviving Corporation
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in the State of Delaware is located at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, in the City of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County of New Castle, 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
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principal place of business of the Surviving Corporation at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and copies thereof will be furnished to any
shareholder of either Constituent Corporation, upon request and without cost.
4.7 Governing Law. This Agreement shall in all respects be construed,
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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
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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.
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IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of OSI Delaware and OSI California, is
hereby executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
OBJECTIVE SYSTEMS INTEGRATORS, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President and Chief
Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President,
General Counsel and Secretary
OBJECTIVE SYSTEMS INTEGRATORS, INC.
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President and Chief
Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President,
General Counsel and Secretary
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OBJECTIVE SYSTEMS INTEGRATORS, INC.
(California Corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ certify that:
1. They are the President and the Secretary, respectively, of Objective
Systems Integrators, 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". There are authorized 50,000,000 shares of
Common Stock and 5,000,000 shares of Preferred Stock. The Preferred Stock is
undesignated as to series, rights, preferences or restrictions.
3. There were 31,831,815 shares of Common Stock, and no shares of
Preferred Stock, outstanding as of the record date (the "Record Date") of the
shareholders' meeting at which the Agreement and Plan of Merger attached hereto
(the "Merger Agreement") was approved. All shares of Common Stock outstanding
were entitled to vote on the merger.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class 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, voting
as a single class.
6. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ further declare under penalty
of perjury under the laws of the State of California that each has read the
foregoing certificate and knows the contents thereof and that the same is true
of their own knowledge.
Executed in Folsom, California on January 28, 1997.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and
Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President,
General Counsel and Secretary
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OBJECTIVE SYSTEMS INTEGRATORS, INC.
(Surviving Corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ certify that:
1. They are the President and the Secretary, respectively, of Objective
Systems Integrators, 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". There are authorized 100,000,000 shares
of Common Stock and 5,000,000 shares of Preferred Stock. The Preferred Stock is
undesignated as to series, rights, preferences or restrictions.
3. There were 100 shares of Common Stock outstanding and entitled to vote
on the Agreement and Plan of Merger attached hereto (the "Merger Agreement").
There were no shares of Preferred Stock outstanding.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class 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.
6. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ further declare under penalty
of perjury under the laws of the State of Delaware that each has read the
foregoing certificate and knows the contents thereof and that the same is true
of their own knowledge.
Executed in Folsom, California on January 28, 1997.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and
Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President,
General Counsel and Secretary
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