PLAN OF MERGER
Exhibit 2.1
This PLAN OF MERGER, dated as of April 24, 2006 (the “Plan”), by and among Xxxxxx Software, Inc., a Delaware corporation (“Xxxxxx Software” and after the Effective Time, the “Surviving Corporation”), Xxxxxx Holdings, Inc., a Delaware corporation and the direct subsidiary of Xxxxxx Software (“Xxxxxx Holdings”), and Xxxxxx Acquisition, Inc., a Delaware corporation and indirect subsidiary of Xxxxxx Software and direct subsidiary of Xxxxxx Holdings (“Merger Sub”), sets forth the terms of the merger (the “Merger”) of Merger Sub into Xxxxxx Software. The Merger will effect the holding company reorganization of Xxxxxx Software pursuant to which Xxxxxx Software will become a wholly owned subsidiary of Xxxxxx Holdings.
WHEREAS, the authorized capital stock of Xxxxxx Software consists of (a) 750,000,000 shares of common stock, par value $0.01 per share (“Xxxxxx Software Common Stock”), of which, 104,194,851 shares were issued and outstanding as of February 28, 2006, (b) 7,281,554 shares of Series A convertible preferred stock, par value $0.01 per share, none of which is currently outstanding (“Xxxxxx Software Series A Preferred Stock”), (c) 7,500,000 shares of Series B junior participating preferred stock, par value $0.01 per share, none of which is currently outstanding (“Xxxxxx Software Series B Preferred Stock”), and (d) 35,218,446 shares of undesignated preferred stock, par value $0.01 per share, none of which is currently outstanding (“Xxxxxx Software Undesignated Preferred Stock”).
WHEREAS, each share of Xxxxxx Software Common Stock also includes a right to purchase (“Xxxxxx Software Purchase Right”) one one-hundredth of a share of Xxxxxx Software Series B Preferred Stock pursuant to the Rights Agreement (the “Xxxxxx Software Rights Plan”), dated as of July 28, 2004, between Xxxxxx Software and Mellon Investor Services LLC, as amended on June 2, 2005.
WHEREAS, Xxxxxx Holdings is and, at all times since its organization, has been a wholly-owned subsidiary of Xxxxxx Software with authorized capital stock consisting of (a) 750,000,000 shares of common stock, par value $0.01 per share (“Xxxxxx Holdings Common Stock”), of which, 100 shares are currently issued and outstanding, (ii) 7,500,000 shares of Series B junior participating preferred stock, par value $0.01 per share, none of which is currently outstanding (“Xxxxxx Holdings Series B Preferred Stock”), and (c) 42,500,000 shares of undesignated preferred stock, par value $0.01 per share, none of which is currently outstanding (“Xxxxxx Holdings Undesignated Preferred Stock”).
WHEREAS, at the Effective Time, the Xxxxxx Software Rights Plan (after the Effective Time, the “Xxxxxx Holdings Rights Plan”), governing Xxxxxx Software Purchase Rights (after the Effective Time, “Xxxxxx Holdings Purchase Rights”) will be assigned to and assumed by Xxxxxx Holdings, pursuant to which Xxxxxx Holdings will agree to perform all duties and obligations thereunder.
WHEREAS, the designations, rights and preferences, and the qualifications, limitations and restrictions thereof, of the Xxxxxx Holdings Undesignated Preferred Stock, the Xxxxxx Holdings Series B Preferred Stock and the Xxxxxx Holdings Common Stock are the same as
those of the Xxxxxx Software Undesignated Preferred Stock, the Xxxxxx Software Series B Preferred Stock and the Xxxxxx Software Common Stock, respectively.
WHEREAS, the Amended and Restated Certificate of Incorporation, the Certificate of Designations of Series B Participating Preferred Stock and the Bylaws of Xxxxxx Holdings immediately after the Effective Time (as hereinafter defined) will contain provisions substantially identical to the Certificate of Incorporation, as amended, the Certificate of Designations of Series B Participating Preferred Stock and Bylaws of Xxxxxx Software immediately before the Effective Time.
WHEREAS, Merger Sub is a wholly owned subsidiary of Xxxxxx Holdings with authorized capital stock consisting of 3,000 shares of common stock, par value $0.01 per share (“Merger Sub Common Stock”), of which, 100 shares are currently issued and outstanding.
WHEREAS, the Board of Directors of each of Xxxxxx Software, Xxxxxx Holdings and Merger Sub have determined that it is desirable and in the best interests of Xxxxxx Software, Xxxxxx Holdings and Merger Sub, respectively, that Xxxxxx Software and Merger Sub should merge, Xxxxxx Software shall be the surviving corporation and become a wholly-owned subsidiary of Xxxxxx Holdings.
NOW, THEREFORE, the parties hereby prescribe the terms and conditions of the merger and the mode of carrying the same into effect as follows:
1. Merger of Merger Sub with and into Xxxxxx Software. At the Effective Time, Merger Sub shall merge with and into Xxxxxx Software in accordance with Section 251 of the Delaware General Corporation Law (the “DGCL”), and the separate existence of Merger Sub shall cease and Xxxxxx Software shall be a direct wholly owned subsidiary of Xxxxxx Holdings. Xxxxxx Software shall be the surviving corporation and assume all of the rights, privileges, assets and liabilities of Merger Sub. Merger Sub and Xxxxxx Software are the only constituent corporations to the Merger.
2. Name of Surviving Corporation. The name of the surviving corporation shall be “Xxxxxx Software Americas, Inc.”.
3. Effect of the Merger. The effect of the Merger shall be as provided in Section 251 of the DGCL. As a result of the Merger, by operation of law and without further act or deed, at the Effective Time, all property, rights, interests and other assets of Merger Sub shall be transferred to and vested in the Surviving Corporation, and the Surviving Corporation shall assume all of the liabilities and obligations of Merger Sub.
4. Effect on Capital Stock and Related Purchase Rights. At the Effective Time:
(a) Each then issued and outstanding share of Xxxxxx Holdings Common Stock (together with the associated Xxxxxx Holdings Purchase Rights) held by Xxxxxx Software will, by virtue of the Merger and without any action on the part of the holder thereof, be cancelled without conversion or issuance of any shares of stock of the Surviving Corporation with respect thereto.
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(b) Each then issued and outstanding share or fraction of a share, of Xxxxxx Software Common Stock will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into a share or equal fraction of a share of Xxxxxx Holdings Common Stock, which shall have the same designations, rights, powers and preferences and the same qualifications, limitations and restrictions as a share of Xxxxxx Software Common Stock immediately prior to the Effective Time.
(c) Each Xxxxxx Software Purchase Right or fraction of a Xxxxxx Software Purchase Right will, by virtue of the Merger and without any action on the part of the holder thereof, be exchanged for a Xxxxxx Holdings Purchase Right or equal fraction of a Xxxxxx Holdings Purchase Right, which shall have the same designations, rights, powers and preferences and the same qualifications, limitations and restrictions as a Xxxxxx Software Purchase Right immediately prior to the Effective Time.
(d) Each then issued and outstanding share of Merger Sub Common Stock will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into a share of common stock of the Surviving Corporation.
5. Certificates. At the Effective Time, each outstanding certificate that, immediately prior to the Effective Time, evidenced Xxxxxx Software Common Stock shall be deemed and treated for all corporate purposes to evidence the ownership of the number of shares of Xxxxxx Holdings Common Stock (including associated Xxxxxx Holdings Purchase Rights) into which such shares of Xxxxxx Software Common Stock were converted pursuant to Section 4(b) of this Plan. In addition, immediately after the Effective Time, each such certificates shall also evidence a number of Xxxxxx Holdings Purchase Rights equal to the number of Xxxxxx Software Purchase Rights evidenced thereby immediately prior to the Effective Time of the Merger.
6. Certificate of Incorporation, Bylaws, Officers and Directors. The Certificate of Incorporation of Xxxxxx Software in effect immediately prior to the Effective, as amended and restated pursuant to Section 7 of this Plan, shall be the Certificate of Incorporation of the Surviving Corporation. The Bylaws of Xxxxxx Software, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation. The officers and directors of Xxxxxx Software immediately prior to the Effective Time shall be the officers and directors of Xxxxxx Holdings as of the Effective Time. The officers and directors of Merger Sub immediately prior to the Effective Time shall be the officers and directors of the Surviving Corporation as of the Effective Time.
7. Amendment to Certificate of Incorporation. Automatically, upon filing the Certificate of Merger in accordance with the DGCL, the Certificate of Incorporation of the Surviving Company shall be amended and restated in its entirety as follows:
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
Article I
The name of the corporation is Xxxxxx Software Americas, Inc.
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Article II
The address of the registered office of the corporation in Delaware is: The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, County of New Castle. The name of its registered agent at such address is: The Corporation Trust Company.
Article III
The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.
Article IV
The total number of shares of stock that the corporation is authorized to issue is 3,000 shares, par value $0.01 per share, all of which shares are designated as common stock.
Article V
The board of directors of the corporation is expressly authorized to adopt, amend or repeal bylaws of the corporation.
Article VI
The personal liability of the directors of the corporation shall be eliminated to the fullest extent permitted by law. The corporation is authorized to indemnify (and advance expenses to) its directors and officers to the fullest extent permitted by law. Neither the amendment, modification or repeal of this Article nor the adoption of any provision in this certificate of incorporation inconsistent with this Article shall adversely affect any right or protection of a director or officer of the corporation with respect to any act or omission that occurred prior to the time of such amendment, modification, repeal or adoption.
Article VII
Elections of directors need not be by written ballot unless the bylaws of the corporation shall so provide.
8. Assumption of Certain Agreements and Plans. Xxxxxx Holdings and Xxxxxx Software hereby agree that they will, at the Effective Time, execute, acknowledge and deliver one or more assignment and assumption agreements pursuant to which Xxxxxx Software will assign and Xxxxxx Holdings will assume, from and after the Effective Time, all rights, duties and obligations required under the following:
(a) Xxxxxx Software, Inc. Amended and Restated 1996 Stock Incentive Plan;
(b) Xxxxxx Software, Inc. Amended and Restated 2001 Stock Incentive Plan;
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(c) Xxxxxx Software, Inc. 2001 Employee Stock Purchase Plan;
(d) Xxxxxx Software, Inc. Employee Stock Ownership Plan;
(e) Employment Agreement, dated June 2, 2006, between Xxxxxx Software, Inc. and Xxxxx Xxxxx;
(f) Employment Agreement, dated February 23, 2001, between Xxxxxx Software, Inc. and Xxxxxx Xxxxxxxx;
(g) The Xxxxxx Software, Inc. Employee 401(k) Savings Plan;
(h) The Xxxxxx Software, Inc. Rights Plan;
9. Plan of Reorganization. This Plan shall constitute a plan of reorganization of Xxxxxx Software and Merger Sub.
10. Filing and Effective Time. If this Plan has not been terminated pursuant to Section 11 hereof, after this Plan has been duly approved in the manner required by law, appropriate Articles of Merger and this Plan shall be filed by Xxxxxx Software and Merger Sub pursuant to and in accordance with the DGCL. The Merger shall be effective at 6:00 a.m., Eastern Time, on April 25, 2006 (the “Effective Time”).
11. Termination. This Plan may be terminated and the Merger abandoned by the Board of Directors of Xxxxxx Software at any time prior to the Effective Time.
12. Adoption and Approval. The Plan was adopted and approved by the Board of Directors of Xxxxxx Software on June 1, 2005 and by the stock holders of Xxxxxx Software on April 17, 2006. The Plan was adopted and approved by the Board of Directors and the sole stockholder of Merger Sub on April 24, 2006.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Plan of Merger as of the day and year first above written.
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XXXXXX SOFTWARE, INC. |
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By |
/s/ Xxxxx X. XxXxxxxxxx |
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Name: |
Xxxxx X XxXxxxxxxx |
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Title: |
Secretary |
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XXXXXX HOLDINGS, INC. |
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By |
/s/ Xxxxx X. XxXxxxxxxx |
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Name: |
Xxxxx X XxXxxxxxxx |
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Title: |
Secretary |
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XXXXXX ACQUISITION, INC. |
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By |
/s/ Xxxxx X. XxXxxxxxxx |
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Name: |
Xxxxx X XxXxxxxxxx |
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Title: |
Secretary |
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