EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
of
KORN/FERRY INTERNATIONAL
(a Delaware Corporation)
and
KORN/FERRY INTERNATIONAL
(a California Corporation)
THIS AGREEMENT AND PLAN OF MERGER dated as of September 22, 1999 (this
"Merger Agreement") is between Korn/Ferry International, a Delaware corporation
("KFY Delaware"), and Korn/Ferry International, a California corporation ("KFY
California"). KFY Delaware and KFY California are sometimes referred to herein
as the "Constituent Corporations."
RECITALS
A. KFY California desires to merge with and into KFY Delaware and KFY
Delaware desires to merge with KFY California, all upon the terms and subject to
the conditions of this Merger Agreement.
B. KFY Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 200,000,000
shares, 150,000,000 of which are designated "Common Stock," par value $0.01 per
share, and 50,000,000 of which are designated "Preferred Stock," par value $0.01
per share. The Preferred Stock of KFY Delaware is undesignated as to series,
rights, preferences, privileges or restrictions. As of the date hereof, 1,000
shares of Common Stock are issued and outstanding, all of which are held by KFY
California, and no shares of Preferred Stock are issued and outstanding.
C. KFY California is a corporation duly organized and existing under the
laws of the State of California and has an authorized capital of 200,000,000
shares, 150,000,000 of which are designated "Common Stock," no par value per
share, and 50,000,000 of which are designated "Preferred Stock," no par value
per share. The Preferred Stock of KFY California is undesignated as to series,
rights, preferences, privileges or restrictions. As of September 17, 1999,
36,259,357 shares of Common Stock and no shares of Preferred Stock were issued
and outstanding.
D. The Board of Directors of KFY California has determined that, for the
purpose of effecting the reincorporation of KFY California in the State of
Delaware, it is advisable and in the best interests of KFY California and its
shareholders that KFY California merge with and into KFY Delaware upon the terms
and conditions herein provided.
E. The respective Boards of Directors of KFY Delaware and KFY California
have approved this Merger Agreement and have directed that this Merger Agreement
be submitted to a vote of their respective sole stockholder and shareholders and
executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, KFY Delaware and KFY California hereby agree,
subject to the terms and conditions hereinafter set forth, as follows:
ARTICLE I
MERGER
1.1 MERGER. In accordance with the provisions of this Merger
Agreement, the Delaware General Corporation Law and the California General
Corporation Law, KFY California shall be merged with and into KFY Delaware (the
"Merger"), the separate existence of KFY California shall cease and KFY Delaware
shall survive the Merger and shall continue to be governed by the laws of the
State of Delaware. KFY Delaware shall be, and is herein sometimes referred to
as, the "Surviving Corporation." The name of the Surviving Corporation shall be
Korn/Ferry International.
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when
the following actions shall have been completed:
(a) This Merger Agreement and the Merger shall have been adopted and
approved by the sole stockholder of KFY Delaware and the shareholders of
KFY California, in accordance with the requirements of the Delaware General
Corporation Law and the California General Corporation Law;
(b) All of the covenants and conditions precedent to the consummation
of the Merger specified in this Merger Agreement shall have been satisfied
or duly waived by the party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed counterpart of
this Merger 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 Merger 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."
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1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of KFY California shall cease and KFY 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 KFY
California's Board of Directors, (iii) shall succeed, without other transfer, to
all of the assets, rights, powers and property of KFY 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 KFY 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 KFY California in the same manner as if
KFY Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the California
General Corporation Law.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
KFY 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 KFY 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.
2.3 DIRECTORS AND OFFICERS. The directors and officers of KFY
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.
ARTICLE III
MANNER OF CONVERSION OF STOCK
3.1 KFY CALIFORNIA COMMON STOCK. Upon the Effective Date of the
Merger, each share of KFY California Common Stock 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 (1) fully paid and nonassessable share
of Common Stock, par value $0.01 per share, of the Surviving Corporation.
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3.2 KFY CALIFORNIA OPTIONS, STOCK PURCHASE RIGHTS AND CONVERTIBLE
SECURITIES.
(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume and continue the stock option plans and all other employee benefit
plans of KFY California. Each outstanding and unexercised option or other right
to purchase or security convertible into KFY 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 KFY 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 KFY California option, stock
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 KFY California.
(b) A number of shares of the Surviving Corporation's Common Stock
shall be reserved for issuance upon the exercise of options, stock purchase
rights and convertible securities equal to the number of shares of KFY
California Common Stock so reserved immediately prior to the Effective Date of
the Merger.
3.3 KFY DELAWARE COMMON STOCK. Upon the Effective Date of the Merger,
each share of Common Stock, par value $0.01 per share, of KFY Delaware issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by KFY 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,
each holder of an outstanding certificate representing shares of KFY California
Common Stock may, at such holder's option, surrender the same for cancellation
to Xxxxx Xxxxxx Stockholder Services L.L.C., 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 the surrendered shares were converted as
herein provided. Unless and until so surrendered, each outstanding certificate
theretofore representing shares of KFY California Common Stock shall be deemed
for all purposes to represent the number of shares of the Surviving
Corporation's Common Stock into which such shares of KFY 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.
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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 KFY
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, and any additional legends agreed upon by the holder and
the Surviving Corporation.
If any certificate for shares of KFY 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 comply with applicable
securities laws and that the person requesting such transfer pay to KFY Delaware
or 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 KFY Delaware
that such tax has been paid or is not payable.
ARTICLE IV
GENERAL
4.1 COVENANTS OF KFY DELAWARE. KFY 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 California
Corporations Law;
(b) file any and all documents with the California Franchise Tax
Board necessary for the assumption by KFY Delaware of all of the franchise tax
liabilities of KFY 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
KFY Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of KFY California such deeds and other instruments, and
there shall be taken or caused to be taken by KFY 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 KFY Delaware the title to and possession
of all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of KFY California and otherwise to carry out the
purposes of this Merger Agreement , and the officers and directors of KFY
Delaware are fully authorized in the name and on behalf of KFY California or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
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4.3 ABANDONMENT. At any time before the Effective Date of the Merger,
this Merger Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either KFY California or KFY
Delaware, or both, notwithstanding the approval of this Merger Agreement by
either the shareholders of KFY California or the sole stockholder of KFY
Delaware, or both.
4.4 AMENDMENT. The Boards of Directors of the Constituent
Corporations may amend this Merger Agreement at any time prior to the filing of
this Merger Agreement (or certificate in lieu thereof) with the Secretaries of
State of the States of Delaware and California, provided that an amendment made
subsequent to the adoption of this Merger Agreement by either the sole
stockholder of KFY Delaware or the shareholders of KFY California shall not: (i)
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; (ii)
alter or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effective immediately after the Merger or (iii) alter or
change any of the terms and conditions of this Merger Agreement if such
alteration or change would adversely affect the holders of any class or series
of capital stock of either Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware shall be 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, County of New Castle, and The Corporation Trust Company will be
the registered agent of the Surviving Corporation at such address.
4.6 AGREEMENT. Executed copies of this Merger Agreement will be on
file at the principal place of business of the Surviving Corporation at 0000
Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 and copies thereof
will be furnished to any holder of any class or series of capital stock of
either Constituent Corporation, upon request and without cost.
4.7 GOVERNING LAW. This Merger 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 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 and all of which together shall
constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Merger Agreement having first been approved
by the resolutions of the Boards of Directors of Korn/Ferry International, a
Delaware corporation, and Korn/Ferry International, a California corporation, is
hereby executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized as of the date first written
above.
KORN/FERRY INTERNATIONAL
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer and Director
ATTEST:
/s/ Xxxxx X. Xxxx
-----------------------------
Xxxxx X. Xxxx
Corporate Secretary
KORN/FERRY INTERNATIONAL
a California corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer,
President and Director
ATTEST:
/s/ Xxxxx X. Xxxx
-----------------------------
Xxxxx X. Xxxx
Corporate Secretary
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