Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
BETWEEN
ANTEON INERNATIONAL CORPORATION
(a Delaware corporation)
AND
ANTEON INTERNATIONAL CORPORATION
(a Virginia corporation)
AGREEMENT AND PLAN OF MERGER (this "Agreement") entered into
as of [ ], 2002 and effective as of the Effective Time (as defined below), by
and between Anteon International Corporation (f/k/a Azimuth Technologies, Inc.),
a Delaware corporation ("Anteon Delaware"), and Anteon International
Corporation, a Virginia corporation ("Anteon Virginia").
WHEREAS, Section 252 of the Delaware General Corporation Law
(the "DGCL") and Section 722 of the Virginia Stock Corporation Act (the "VSCA")
permit the merger of a foreign corporation into a domestic corporation and a
domestic corporation into a foreign corporation, respectively; and
WHEREAS, the respective boards of directors and the
stockholders or shareholders, as the case may be, of Anteon Delaware and Anteon
Xxxxxxxx xxxx it advisable and in the best interests of their respective
corporations to approve this Agreement, pursuant to which Anteon Virginia shall
merge with and into Anteon Delaware, with Anteon Delaware as the surviving
entity, on the terms and conditions contained herein and in accordance with the
DGCL and the VSCA (the "Merger").
NOW, THEREFORE, in consideration of the premises and the
covenants herein contained, the parties hereto agree as follows:
1. MERGER. The parties hereto agree that Anteon Virginia shall
be merged with and into Anteon Delaware in accordance with the provisions of
Section 252 of the DGCL and Section 722 of the VSCA.
2. NAME. The surviving entity shall be Anteon Delaware (the
"Surviving Corporation"). The name of the Surviving Corporation shall be Anteon
International Corporation.
3. EFFECTIVE TIME OF MERGER. The Merger shall become effective
upon the filing of the Certificate of Merger with the Secretary of State of the
State of Delaware, or at such later time as the parties hereto may agree and as
specified in the
2
Certificate of Merger (the "Effective Time"). This Agreement may be
terminated prior to the Effective Time by either Anteon Delaware or Anteon
Virginia.
4. FILINGS. Anteon Delaware and Anteon Virginia agree that
they will cause to be executed and filed or recorded any document or documents,
including but not limited to the Certificate of Merger and the Articles of
Merger, prescribed by the laws of the State of Delaware and the Commonwealth of
Virginia, respectively, and that they will cause to be performed all necessary
acts within the State of Delaware and the Commonwealth and Virginia and
elsewhere to effectuate the Merger.
5. CERTIFICATE OF INCORPORATION AND BY-LAWS. The Amended and
Restated Certificate of Incorporation and the By-laws of Anteon Delaware shall,
upon the Effective Time and as a result of the Merger, be amended and restated
to read in their entireties as set forth in Exhibits A and B hereto,
respectively, and shall be the Certificate of Incorporation and By-laws of the
Surviving Corporation.
6. DIRECTORS AND OFFICERS. The directors and officers of
Anteon Delaware immediately prior to the Effective Time shall become, from and
after the Effective Time, the directors and officers of the Surviving
Corporation, until their respective successors are duly elected or appointed and
qualify or their earlier resignation or removal.
7. CONVERSION OF CAPITAL STOCK. At the Effective Time, by
virtue of the Merger and without any action on the part of any holder of any
capital stock of Anteon Delaware or Anteon Virginia, as the case may be:
(a) each share of Class A Common Stock, par value
$0.01 per share, of Anteon Delaware issued and outstanding immediately prior to
the Effective Time shall be converted into and become one (1) validly issued,
fully paid and non-assessable share of Common Stock, par value $0.01 per share,
of the Surviving Corporation (the "Common Stock");
(b) each share of Class B Common Stock, par value
$0.01 per share, of Anteon Delaware issued and outstanding immediately prior to
the Effective Time shall be converted into and become one (1) validly issued,
fully paid and non-assessable share of Common Stock;
(c) each share of Non-Voting Common Stock, par value
$0.01 per share, of Anteon Delaware issued and outstanding immediately prior to
the Effective Time shall be converted into and become one (1) validly issued,
fully paid and non-assessable share of Common Stock; and
(d) each share of common stock, par value $0.05 per
share, of Anteon Virginia ("Anteon Virginia Common Stock") issued and
outstanding (i) that is held by Anteon Delaware immediately prior to the
Effective Time shall cease to be outstanding, shall be canceled and retired
without payment of any consideration therefor and shall cease to exist, and (ii)
that is held by any person or entity other than Anteon
3
Delaware immediately prior to the Effective Time shall be converted into and
become two (2) validly issued, fully paid and non-assessable shares of Common
Stock.
8. APPRAISAL RIGHTS.
(a) Notwithstanding anything in this Agreement to the
contrary, shares of all classes of stock of Anteon Delaware issued and
outstanding immediately prior to the Effective Time held by any person who has
the right to demand, and who properly demands, an appraisal of such shares
("Delaware Dissenting Shares"), in accordance with Section 262 of the DGCL (or
any successor provision), shall not be converted into a right to receive Common
Stock, unless such holder fails to perfect, withdraws or otherwise loses such
holder's right to such appraisal, if any. If, upon or after the Effective Time,
such holder fails to perfect, withdraws or otherwise loses any such right to
appraisal and payment under the DGCL, then, as of the Effective Time or the
occurrence of such event, whichever last occurs, each such share of such holder
shall cease to be Delaware Dissenting Shares and shall be converted into and
represent the right to receive Common Stock, in accordance with Section 7
hereof.
(b) Notwithstanding anything in this Agreement to the
contrary, each share of Anteon Virginia Common Stock that is outstanding
immediately prior to the Effective Time and that is held by a shareholder who is
entitled to vote and who has not voted such share in favor of the approval and
adoption of this Agreement and who, in accordance with the VSCA has submitted a
written demand for payment in the manner provided in the VSCA and who otherwise
has fully complied with the VSCA (each, a "Virginia Dissenting Share"), shall
not be converted into or be exchangeable for the right to receive the Common
Stock, as provided in Section 7 hereof, but the holder of such share shall be
entitled to payment of the fair value of such share in accordance with the
provisions of the VSCA; PROVIDED, HOWEVER, that: (i) if any holder of a Virginia
Dissenting Share shall subsequently deliver a written withdrawal of his or her
demand for the fair value of such share (with the written approval of Anteon
Delaware, if such withdrawal is not tendered within 60 days after the Effective
Time); or (ii) if any holder fails to perfect or loses his, her or its
dissenter's rights as provided in the VSCA; or (iii) if any holder of a Virginia
Dissenting Share fails to demand payment within the time periods provided in the
VSCA, such holder shall forfeit the right to the fair value of such share and
such share shall thereupon be deemed to have been converted into and to have
become exchangeable for, as of the Effective Time, the right to receive Common
Stock as set forth in Section 7 hereof.
9. STOCK OPTIONS.
(a) Pursuant to and by virtue of the Merger, at the
Effective Time, Anteon Virginia shall assign to, and Anteon Delaware as the
Surviving Corporation shall assume, the Amended and Restated Anteon Corporation
Omnibus Stock Plan (the "Company Option Plan").
(b) Each outstanding option to purchase a share of
Anteon Virginia Common Stock (a "Stock Option"), whether or not vested, will be
assumed by
4
Anteon Delaware as the Surviving Corporation and shall be deemed to
constitute an option to acquire, on substantially the same terms and
conditions as were applicable under such Stock Option (including, without
limitation, as to vesting and expiration), [ ] shares of Common Stock at a
revised exercise price equal to the exercise price of such Stock Option
multiplied by a factor of [ ].
(c) Prior to the Effective Time, Anteon Virginia
shall use its best efforts to make any amendments to the terms of the Company
Option Plans and any options granted thereunder that are necessary or
appropriate to give effect to the transactions contemplated by this Section 9.
10. STOCK CERTIFICATES. Following the Effective Time, upon the
Surviving Corporation's receipt of a certificate representing a share of stock
of Anteon Delaware or Anteon Virginia prior to the Effective Time from the
holder thereof, the Surviving Corporation shall promptly deliver, or cause to be
delivered, by mail a new certificate or certificates representing Common Stock,
reflecting the number of shares of Common Stock that such holder is entitled
pursuant to Section 7 hereof.
11. MERGER, ASSUMPTION OF LIABILITIES. At the Effective Time,
Anteon Virginia shall be deemed merged into Anteon Delaware as provided by the
DGCL and the VSCA and by this Agreement. All rights, privileges, and powers of
Anteon Virginia, and all property, real, personal and mixed, and all debts due
to Anteon Virginia, as well as all other things and causes of action belonging
to Anteon Virginia shall be vested in the Surviving Corporation, and shall
thereafter be the property of the Surviving Corporation as they were of Anteon
Virginia. All rights of credits and all liens upon any property of Anteon
Virginia shall be preserved and all debts, liabilities and duties of Anteon
Virginia shall attach to the Surviving Corporation and may be enforced against
the Surviving Corporation to the same extent as if such debts, liabilities and
duties had been incurred and contracted by it. Anteon Virginia shall not be
required to wind up its affairs or pay its liabilities and distribute its assets
under the DGCL or the VSCA.
12. REPRESENTATIONS AND WARRANTIES. Each of Anteon Delaware
and Anteon Virginia hereby represents and warrants to the other that: (a) it is
a corporation duly organized, validly existing and in good standing under the
laws of Delaware and Virginia, respectively; and (b) the signing of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been approved by all necessary action on its part and do not
violate any provisions of its charter documents or any other agreements or
instruments to which it is a party.
13. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The parties hereto
confirm that any facsimile copy of another party's executed counterparts of this
Agreement (or its signature page thereof) will be deemed to be an executed
original thereof.
5
14. GOVERNING LAW. This Agreement shall be deemed to be made
in and all respects shall be interpreted, construed and governed by the laws of
the State of Delaware.
15. NOTICES. Any notice or request to be given under this
Agreement by one party to another shall be in writing and shall be delivered
personally or by certified mail, postage prepaid to such addresses as either
party may designate in writing to the other.
16. NO OTHER AGREEMENT OR UNDERSTANDINGS. This Agreement
embodies all of the agreements and understandings in relation to the subject
matter of this Agreement, and no covenants, understandings or agreements in
relation to this Agreement exist between the parties, except as expressly set
forth in this Agreement.
6
IN WITNESS WHEREOF, the parties hereto have cause this
Agreement to be duly executed as of the date first above written.
ANTEON INTERNATIONAL
CORPORATION, a Delaware corporation
By ________________________________
Name: Xxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
ANTEON INTERNATIONAL CORPORATION,
a Virginia corporation
By ________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
and Chief Financial Officer
