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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 September 24, 1998, by and between DataWorks
Corporation, a California corporation ("DataWorks California"), and DataWorks
Corporation, a Delaware corporation ("DataWorks Delaware"). DataWorks California
and DataWorks Delaware are sometimes referred to as the "Constituent
Corporations."
The authorized capital stock of DataWorks California consists of thirty
million (30,000,000) shares, of which twenty-five million (25,000,000) shares
are designated Common Stock, no par value, and five million (5,000,000) shares
are designated Preferred Stock, no par value. The authorized capital stock of
DataWorks Delaware consists of fifty million (50,000,000) shares of Common
Stock, $.001 par value, and five million (5,000,000) 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 DataWorks California merge into
DataWorks Delaware upon the terms and conditions herein provided.
Following the Merger (as defined below) the subsidiaries of DataWorks
California shall be the subsidiaries of DataWorks Delaware.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that DataWorks
California shall merge into DataWorks Delaware on the following terms,
conditions and other provisions:
1. TERMS AND CONDITIONS
1.1 MERGER. DataWorks California shall be merged with and into DataWorks
Delaware (the "Merger"), and DataWorks Delaware shall be the surviving
corporation (the "Surviving Corporation") effective at 10:00 a.m. (Pacific
Daylight Time) on October 2, 1998 (the "Effective Time").
1.2 SUCCESSION. At the Effective Time, DataWorks Delaware shall continue
its corporate existence under the laws of the State of Delaware, and the
separate existence and corporate organization of DataWorks 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 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
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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 DATAWORKS CALIFORNIA AND DATAWORKS 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 DataWorks California issued and outstanding immediately prior
thereto shall be changed and converted into one fully paid and nonassessable
share of Common Stock of DataWorks Delaware; and (ii) each share of Common Stock
of DataWorks 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 DataWorks California shall be deemed for all purposes to
evidence ownership of and to represent the shares of DataWorks Delaware into
which the shares of DataWorks 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 DataWorks Delaware evidenced by such
outstanding certificate as above provided.
1.6 OPTIONS OF DATAWORKS CALIFORNIA. At the Effective Time, the
Surviving Corporation will assume and continue all of DataWorks 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 be converted into options of DataWorks Delaware, such
that an option for one (1) share of DataWorks California shall be converted into
an option for (1) share of DataWorks Delaware, with no change in the exercise
price of the DataWorks Delaware option. No other changes in the terms and
conditions of such options will occur. Effective at the Effective Time,
DataWorks Delaware hereby assumes the outstanding and unexercised portions of
such options and the obligations of DataWorks California with respect thereto.
1.7 WARRANTS. On the Effective Time, the Surviving Corporation will
assume and continue warrants of DataWorks California and the outstanding and
unexercised portions of all warrants, including without limitation all warrants
to purchase shares of Common Stock outstanding and any other outstanding
warrants, shall be converted into warrants of DataWorks Delaware, such that a
warrant for one (1) share of DataWorks California shall be converted into
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a warrant for one (1) share of DataWorks Delaware, with no change in the
exercise price of the DataWorks Delaware warrant. No other changes in the terms
and conditions of such warrants will occur. Effective on the Effective Date,
DataWorks Delaware hereby assumes the outstanding and unexercised portions of
such warrants and the obligations of DataWorks California with respect thereto.
1.8 EMPLOYEE BENEFIT PLANS. At the Effective Time, the Surviving
Corporation shall assume all obligations of DataWorks California under any and
all employee benefit plans in effect as of 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 DataWorks Delaware shall be substituted for each share
of Common Stock of DataWorks 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
DataWorks Delaware Common Stock with respect to each such employee benefit plan
as is equal to the number of shares of DataWorks 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 DataWorks 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 DataWorks 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 DataWorks 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 DataWorks 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 DataWorks 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 DataWorks 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 DataWorks California, this Merger Agreement may be amended in any manner
(except that, after
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the approval of the Merger Agreement by the shareholders of DataWorks
California, the principal terms may not be amended without the further approval
of the shareholders of DataWorks California) as may be determined in the
judgment of the respective Board of Directors of DataWorks Delaware and
DataWorks 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.
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
DataWorks California in accordance with applicable provisions of the General
Corporation Law of the State of California; and
(b) DataWorks California, as sole stockholder of DataWorks
Delaware, shall have 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 DataWorks 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 DataWorks California or DataWorks Delaware or both,
notwithstanding the approval of this Merger Agreement by the shareholders of
DataWorks California or DataWorks 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 DataWorks California and DataWorks
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 DataWorks 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 DataWorks California and DataWorks
Delaware, is hereby executed on behalf of each said corporation and attested by
their respective officers thereunto duly authorized.
DATAWORKS CORPORATION
a California corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President and Chief
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Secretary
DATAWORKS CORPORATION
a Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President and Chief
Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Secretary
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