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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), made this 10th day of
November 1998, by and between Greentree Software, Inc., a New York corporation
("Greentree-New York"), and PurchaseSoft, Inc., a Delaware corporation and a
wholly-owned subsidiary of Greentree-New York ("PurchaseSoft") (the two
corporate parties hereto being sometimes collectively referred to as the
"Constituent Corporations").
WITNESSETH:
WHEREAS, the Boards of Directors of Greentree-New York and PurchaseSoft have
determined that the proposed merger (the "Merger") of Greentree-New York with
PurchaseSoft upon the terms hereinafter set forth is advisable and in the best
interests of the shareholders of such corporations, and the Boards of Directors
of Greentree-New York and PurchaseSoft have adopted and approved this Agreement
and both such Boards of Directors have directed that this Agreement be submitted
to the shareholders of Greentree-New York and PurchaseSoft for their approval;
and
WHEREAS, the Merger is intended to constitute a reorganization within the
meaning of Section 368(a)(1)(F) of the Internal Revenue Code of 1986; and
WHEREAS, Greentree-New York and PurchaseSoft, as appropriate, intend to take all
such action as may be necessary or appropriate as and when required by the
provisions of this Agreement in order to consummate the Merger;
WHEREAS, the authorized capital stock of Greentree-New York consists solely of
15,000,000 shares of common stock, par value $.01 per share, of which 8,154,761
shares are issued and outstanding as of the date hereof; and
WHEREAS, the authorized capital stock of PurchaseSoft consists solely of
25,000,000 shares of common stock, par value $.01 per share, of which 100 shares
are issued and outstanding as of the date hereof, all of which shares are owned
by Greentree-New York;
NOW, THEREFORE, the Constituent Corporations do hereby agree to merge on the
terms and conditions herein provided, as follows:
ARTICLE I
GENERAL
1.1 Agreement to Merge. The parties to this Agreement agree to effect the
Merger herein provided for, subject to the terms and conditions set forth
herein.
1.2 Effective Time of the Merger. The Merger shall be effective in
accordance with the laws of the States of New York and Delaware. The date and
time the Merger becomes effective is referred to as the "Effective Time of the
Merger."
1.3 Surviving Corporation. At the Effective Time of the Merger,
Greentree-New York shall be merged with and into PurchaseSoft, and PurchaseSoft
shall be the surviving corporation, governed by the laws of the
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State of Delaware (hereinafter sometimes called the "Surviving Corporation").
The name of the Surviving Corporation will be PurchaseSoft, Inc.
1.4 Certificate of Incorporation and Bylaws. At the Effective Time of the
Merger, the Certificate of Incorporation and Bylaws of PurchaseSoft in effect
immediately prior to the Effective Time of the Merger shall be the Certificate
of Incorporation and Bylaws of the Surviving Corporation, subject always to the
right of the Surviving Corporation to amend its Certificate of Incorporation and
Bylaws in accordance with the laws of the State of Delaware and the provisions
of the Certificate of Incorporation.
1.5 Directors. The directors of Greentree-New York in office at the
Effective Time of the Merger shall be and constitute the directors of the
Surviving Corporation, each holding the same directorship in the Surviving
Corporation as he or she held in Greentree-New York for the terms elected and/or
until their respective successors shall be elected or appointed and qualified.
1.6 Officers. The officers of Greentree-New York in office at the Effective
Time of the Merger shall be and constitute the officers of the Surviving
Corporation, each holding the same office in the Surviving Corporation as he or
she held in Greentree-New York for the terms elected and/or until their
respective successors shall be elected or appointed and qualified.
1.7 Effect of the Merger. On and after the Effective Time of the Merger,
the separate existence of Greentree-New York and PurchaseSoft shall cease and
the Surviving Corporation shall succeed, without further action, to all the
properties and assets of Greentree-New York and PurchaseSoft of every kind,
nature and description and to Greentree-New York's and PurchaseSoft's business
as a going concern. The Surviving Corporation shall also succeed to all rights,
title and interests to all real estate and other property owned by Greentree-New
York or PurchaseSoft without reversion or impairment, without further act or
deed, and without any transfer or assignment having occurred, but subject to any
existing liens thereon. All liabilities and obligations of Greentree-New York
or PurchaseSoft shall become the liabilities and obligations of the Surviving
Corporation, and any proceedings pending against Greentree-New York or
PurchaseSoft will be continued as if the Merger had not occurred.
1.8 Further Assurances. Greentree-New York hereby agrees that at any time,
or from time to time, as and when requested by the Surviving Corporation, or by
its successors and assigns, it will execute and deliver, or cause to be executed
and delivered in its name by its last acting officers, or by the corresponding
officers of the Surviving Corporation, all such conveyances, assignments,
transfers, deeds or other instruments, and will take or cause to be taken such
further or other action and give such assurances as the Surviving Corporation,
its successors or assigns may deem necessary or desirable in order to evidence
the transfer, vesting of any property, right, privilege or franchise or to vest
or perfect in or confirm to the Surviving Corporation, its successors and
assigns, title to and possession of all the property, rights, privileges,
powers, immunities, franchises and interests referred to in this Article I and
otherwise to carry out the intent and purposes thereof.
ARTICLE II
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 Greentree-New York Capital Stock. At the Effective Time of the Merger,
by virtue of the Merger and without any action on the part of Greentree-New
York, PurchaseSoft or the holders of any of the common stock ("Greentree-New
York Common Stock") of Greentree-New York: (i) each issued and outstanding share
of Greentree-New York Common Stock, including any rights attached thereto, and
each share of Common Stock of Greentree-New York, including any rights attached
thereto, held in the treasury of Greentree-New York, shall be converted into one
share of PurchaseSoft Common Stock with such similar rights attached thereto;
(ii) each option to purchase Greentree-New York Common Stock granted pursuant to
(a) the 1987, 1984 and 1997 Stock Option Plans of Greentree-New York, each as
amended to date (the "Stock Option Plans"), and (b) the stock option agreements
which shall be outstanding immediately prior to the Merger (collectively, the
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"Options") shall, by virtue of the merger and without further action, be assumed
by PurchaseSoft and the holder thereof thereafter shall be entitled upon
exercise, in accordance with the terms of such Options, to purchase after the
Effective Time that number of shares of PurchaseSoft Common Stock as is equal to
the number of shares of Greentree-New York Common Stock that such holder is, or
would have been at the time of exercise, entitled to purchase as provided in
such Option, at the price per share provided in such Option, and except for the
security for which such Option is exercisable, each Option shall otherwise
remain subject to the identical terms and conditions after the Effective Time
(including, without limitation, the exercise date and extent of exercisability)
as were applicable to such Option immediately prior to the Effective Time; and
(iii) each holder of a warrant to purchase Greentree-New York Common Stock
granted pursuant to the stock purchase warrants which shall be outstanding
immediately prior to the Merger (the "Warrants") shall be entitled upon
exercise, in accordance with the terms of such warrants, to purchase after the
Effective Time that number of shares of PurchaseSoft Common Stock as is equal to
the number of shares of Greentree-New York Common Stock, respectively, that such
holder is, or would have been at the time of exercise, entitled to purchase as
provided in such Warrant, at the price per share provided in such Warrant, and
except for the security for which such Warrant is exercisable, each Warrant
shall otherwise remain subject to identical terms and conditions after the
Effective Time (including, without limitation, the exercise date and extent of
exercisability) as were applicable to such Warrant immediately prior to the
Effective Time.
2.2 PurchaseSoft Capital Stock. At the Effective Time of the Merger, by
virtue of the Merger and without any action on the part of Greentree-New York,
PurchaseSoft or the holders of any of the common stock ("PurchaseSoft Common
Stock") of PurchaseSoft, each issued and outstanding share of PurchaseSoft
Common Stock shall be canceled.
ARTICLE III
TERMINATION AND AMENDMENT
3.1 Termination. This Agreement may be terminated and abandoned at any time
prior to the Effective Time of the Merger, whether before or after action
thereon by the shareholders of the Constituent Corporations, by the mutual
written consent of the Boards of Directors of Greentree-New York and
PurchaseSoft.
3.2 Consequences of Termination. In the event of the termination and
abandonment of this Agreement pursuant to the provisions of Section 3.1 hereof,
this Agreement shall be of no further force or effect.
3.3 Modification, Amendment, Etc. Any of the terms or conditions of this
Agreement may be waived at any time, whether before or after action thereon by
the shareholders of the Constituent Corporations, by the party entitled to the
benefits thereof, and this Agreement may be modified or amended at any time,
whether before or after action thereon by the shareholders of the Constituent
Corporations, to the full extent permitted by the corporate laws of the States
of New York and Delaware. Any waiver, modification or amendment shall be
effective only if reduced to writing and executed by the duly authorized
representatives of the Constituent Corporations.
ARTICLE IV
MISCELLANEOUS
4.1 Expenses. The Surviving Corporation shall pay all expenses of carrying
this Agreement into effect and accomplishing the Merger herein provided for.
4.2 Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provisions of this
Agreement.
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4.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original instrument, and all such counterparts together shall constitute only
one original.
4.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws principles thereof.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf by an officer duly authorized thereunto as of the date
first above written.
GREENTREE SOFTWARE, INC.,
a New York corporation
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx,
Chairman and
Chief Executive Officer
PURCHASESOFT, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx,
Chairman and
Chief Executive Officer
