EXHIBIT 3.4
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement") is made as of
this 18th day of May, 1998, by and between Xxxx Group Newco, Inc., a
corporation organized and governed under the laws of Delaware with a
principal place of business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000 ("Xxxx Group") and Xxxx Systems, Inc., a corporation
organized and governed under the laws of California with a principal place of
business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000 ("Xxxx
Systems"). Xxxx Group and Xxxx Systems are sometimes referred to hereinafter
as the "Constituent Corporations."
WHEREAS, the directors of the Constituent Corporations deem it advisable
and to the advantage of such corporations that Xxxx Systems merge with and
into Xxxx Group upon the terms and conditions herein provided, and
WHEREAS, the parties intend that the merger contemplated hereby shall be
a tax-free reorganization under Section 368(a)(1)(F) of the Internal Revenue
Code of 1986, as amended;
NOW, THEREFORE, the parties hereby adopt the plan of merger encompassed
by this Merger Agreement and, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, do hereby agree
that Xxxx Systems shall merge with and into Xxxx Group on the following terms
and conditions:
ARTICLE
1.
TERMS AND CONDITIONS OF THE MERGER
1.1 MERGER. As soon as practicable following the fulfillment (or waiver, to
the extent permitted herein) of the conditions specified herein, Xxxx
Systems shall be merged with and into Xxxx Group (the "Merger"), and
Xxxx Group shall survive the Merger, and its name shall be changed as
set forth in Section 2.1 hereof.
1.2 EFFECTIVE DATE. The Merger shall be effective upon the filing of this
Merger Agreement, together with appropriate articles of merger or a
certificate of merger with respect thereto, with the Secretaries of
State of the States of Delaware and California, as provided by the
General Corporation Law of Delaware and the California General
Corporation Law (the "Effective Date").
1.3 SURVIVING CORPORATION. On the Effective Date, Xxxx Group, as the
surviving corporation (the "Surviving Corporation"), shall continue its
corporate existence under the laws of the State of Delaware and shall
succeed to all of the rights, privileges, powers and property of Xxxx
Systems in the manner of and as more fully set forth in Section 259 of
the Delaware General Corporation Law, and the separate corporate
existence of Xxxx Systems, except insofar as it may be continued by
operation of law, shall cease and be terminated.
1.4 CAPITAL STOCK OF XXXX SYSTEMS AND XXXX GROUP. On the Effective Date, by
virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders:
(a) Each share of Common Stock of Xxxx Systems issued and outstanding
immediately prior thereto shall be changed and converted into one (1)
fully paid and nonassessable share of the Common Stock of Xxxx Group;
and
(b) Each share of Common Stock of Xxxx Group issued and outstanding
immediately prior thereto (one thousand (1,000) shares held by Xxxx
Systems) shall be canceled and returned to the status of authorized
but unissued shares.
1.5 STOCK CERTIFICATES. On and after the Effective Date, all of the outstanding
certificates that, prior to that time, represented shares of the capital
stock of Xxxx Systems shall be deemed for all purposes to evidence
ownership and to represent the number of shares of the capital stock of
Xxxx Group in accordance with Section 1.4 above and shall be so registered
on the books and records of Xxxx Group or its transfer agent. 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 Xxxx Group or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to, and to
receive any dividend or other distributions upon, the shares of Xxxx Group
evidenced by such outstanding certificate as above provided. After the
Effective Date, whenever certificates which formerly represented shares of
Xxxx Systems are presented for transfer or conversion, the Surviving
Corporation will cause to be issued in respect thereof a certificate or
certificates representing the appropriate number of shares of the capital
stock of Xxxx Group in accordance with Section 1.4 above.
1.6 FRACTIONAL SHARES. No fractional shares shall be issued upon conversion of
shares of capital stock of Xxxx Systems into shares of capital stock of
Xxxx Group.
1.7 STOCK OPTIONS AND WARRANTS. Xxxx Group will assume the right and
obligation of Xxxx Systems with respect to any and all options, warrants
or other rights to purchase shares of any class of common stock of Xxxx
Systems outstanding whether or not exercisable at the Effective Date
(collectively, the "Options"). Pursuant to such assumption, each holder
of Options shall be entitled to purchase from Xxxx Group the number of
shares of Xxxx Group common stock equal to the number of shares of Xxxx
Systems common stock subject to such Options immediately prior to the
Effective Date, at an exercise price per share of Xxxx Group common
stock equal to the exercise price per share specified with respect to
such Option. All of the terms and provisions of each such Option shall
remain the same as and shall continue all the terms and provisions of
such Option as outstanding immediately prior to the Effective Date,
except that shares of Xxxx Group common stock shall be substituted for
Xxxx Systems common stock, effective as of the Effective Date. As
promptly as practicable after the Effective Date, Xxxx Group shall issue
to each holder of any Option a written instrument evidencing Xxxx
Group's assumption of such Option.
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1.8 OTHER EMPLOYEE BENEFIT PLANS. Xxxx Group will assume all of the
obligations of Xxxx Systems under any and all other employee benefit
plans in effect as of the Effective Date or with respect to which
employee rights or accrued benefits are outstanding as of the Effective
Date.
ARTICLE
2.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. On the Effective Date, the Certificate of
Incorporation of Xxxx Group in effect immediately prior thereto shall be
amended in the following respect, and as amended in the form attached
hereto as Appendix A, and may be certified as the Certificate of
Incorporation of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law. Article I
shall be amended to read as follows:
The name of this Corporation is Xxxx Group, Inc. (the "Corporation").
2.2 BYLAWS. The Bylaws of Xxxx Group in effect on the Effective Date shall
continue to be the Bylaws of the Surviving Corporation without change or
amendment until further amended in accordance with the provisions thereof
and applicable law.
2.3 DIRECTORS. The directors of Xxxx Group immediately preceding the Effective
Date shall continue to be the directors of the Surviving Corporation on
and after the Effective Date to serve until their successors are duly
elected and qualified.
2.4 OFFICERS. The officers of Xxxx Group immediately preceding the
Effective Date shall continue to be the officers of the Surviving
Corporation on and after the Effective Date to serve until their
successors are duly elected and qualified.
ARTICLE
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 Xxxx Systems 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 confirm 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 Xxxx Systems
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 Xxxx Systems 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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3.2 AMENDMENT. At any time before the date of filing, this Merger Agreement
may be amended in any manner (except that any of the principal terms may
not be amended without the approval of the shareholders of Xxxx Systems
if such amendment would in the sole discretion of the Boards of
Directors of Xxxx Systems have a material adverse effect on the rights
of such shareholders) as may be determined in the judgment of the
respective Boards of Directors of Xxxx Systems and Xxxx Group 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 OF MERGER. The respective obligations 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 Xxxx
Systems in accordance with the California General Corporation Law;
(b) The sole shareholder of Xxxx Group shall have approved the Merger in
accordance with the Delaware General Corporation Law; and
(c) Any and all consents, permits, authorizations, approvals and orders
deemed in the sole discretion of Xxxx Systems to be material to
consummation of the Merger shall have been obtained.
3.4 ABANDONMENT OR DEFERRAL. At any time before the date of filing, this
Merger Agreement may be terminated and the Merger may be abandoned by
the Board of Directors of either or both of the Constituent Corporations
notwithstanding the approval of this Merger Agreement by the
shareholders of Xxxx Systems and Xxxx Group, 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 the Constituent Corporations, such
action would be in the best interest of such Corporations. This Merger
Agreement may be terminated at any time by the Board of Directors of
Xxxx Systems in the event that the number of shares as to which
shareholders have properly exercised their rights under Section 1110 of
the California General Corporation Law is such that it is impracticable,
in the sole judgment and discretion of such Board of Directors, to
proceed with the consummation of the Merger. 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 Xxxx Systems shall pay all expenses of
the Constituent Corporations incurred in connection with the Merger.
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, the Merger Agreement, having first been duly approved
by the Boards of Directors of Xxxx Systems and Xxxx Group, is hereby executed
on behalf of each of such corporations and attested by their respective
officers thereunto duly authorized.
ATTEST: XXXX SYSTEMS, INC.,
a California corporation
By: /s/ Del Xxxxxx By: /s/ Xxxxxxx X. Dirk
------------------------- ------------------------
Del Xxxxxx Xxxxxxx J. Xxxx
Its: Vice President of Finance Its: Chief Executive Officer
and Administration
ATTEST: XXXX GROUP NEWCO, INC.,
a Delaware corporation
By: /s/ Del Xxxxxx By: /s/ Xxxxxxx X. Dirk
------------------------- ------------------------
Del Xxxxxx Xxxxxxx J. Xxxx
Its: Chief Financial Officer Its: President and Chief Executive Officer
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