EXHIBIT 2.2
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Plan and Agreement of Reorganization, dated August 26, 1994, between Computer
Generated Solutions, Inc. and Real-Time Technology, Inc.
EXHIBIT 2.2
PLAN AND AGREEMENT OF REORGANIZATION between Computer Generated
Solutions, Inc. (a Delaware corporation) and Real Time
Technology, Inc. (a New York corporation).
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For the Acquisition of all of the assets of Real Time Technology, Inc. in
exchange for stock of Computer Generated Solutions, Inc.
PLAN AND AGREEMENT OF REORGANIZATION, dated August 26, 1994, between COMPUTER
GENERATED SOLUTIONS, INC., a Delaware corporation (hereinafter called CGS), and
REAL-TIME TECHNOLOGY, INC., a New York corporation (hereinafter called RTT).
1. CGS desires to acquire, and RTT desires to transfer to CGS, all the assets,
properties, business, and good will of RTT in exchange for the issue and
delivery by CGS to RTT of shares of Voting Common Stock, par value $.01 per
share of CGS, said shares of Voting Common Stock of CGS to be in turn
distributed to the stockholders of RTT in exchange for their stock in RTT, all
upon the terms and conditions hereinafter set forth and for the purpose of
carrying out a tax-free reorganization within the meaning of the Internal
Revenue Code of 1986, as amended.
2. RTT desires to provide for the winding up and settling of its affairs in
voluntary dissolution and for the distribution to
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its stockholders of such shares of Common Stock, par value $.01 per share, of
CGS, as hereinafter provided, in complete liquidation and complete cancellation
or redemption of its stock.
3. RTT hereby represents and warrants to CGS as follows:
(a) RTT is a corporation duly organized and existing and in good standing
under the laws of the State of New York, and it is entitled to own or lease its
properties and to carry on its business at and in the place where such
properties are now owned, leased, or operated or such business is now conducted.
(b) The authorized capital stock of RTT consists of 200 shares of Common
Stock, no par value per share (hereinafter called Common Stock of RTT), of which
10 shares have been validly issued and are now outstanding.
(c) RTT does not have any subsidiaries.
(d) Annexed hereto as Exhibit A are balance sheets of RTT as of December 31,
1989, December 31, 1990, December 31, 1991, December 31, 1992, December 31,
1993, June 30, 1994 and related statements of income for the five years ended
December 31, 1993, and the six months ended June 30, 1994 as reviewed by
independent public accountants. RTT will provide a balance sheet and related
statement of income and expense for the nine months ended September 30, 1994,
certified by independent public accountants. All such statements are correct and
complete and present fairly the financial condition of
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RTT as of the respective dates of said balance sheets and the results of
operations of RTT for the periods indicated in said statements of income in
conformity with generally accepted accounting principles applied on a consistent
basis.
(e) At June 30, 1994, RTT had no liabilities, absolute or contingent, which
are not shown or provided for on the balance sheets of RTT as of June 30, 1994
(Exhibit A, annexed hereto).
(f) Since June 30, 1994 there has been no material change in the condition,
financial or otherwise, of RTT as shown in the balance sheet of RTT as of June
30, 1994 (Exhibit A annexed hereto), other than changes occurring in the
ordinary course of business, which changes have not materially adversely
affected its business, properties, or financial condition.
(g) The accounts receivable of RTT shown on said balance sheet of RTT as of
June 30, 1994 (Exhibit A annexed hereto), or thereafter acquired by it prior to
the date hereof, have been collected or are collectible in amounts not less than
96 percent of book amounts thereof.
(h) The amounts set up as provisions for taxes on the balance sheet of RTT as
of June 30, 1994 (Exhibit A annexed hereto), are sufficient for the payment of
all accrued and unpaid federal, state, county, and local
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taxes of RTT, whether or not disputed, for the fiscal year ended on said date
and for all fiscal years prior thereto. All deficiencies proposed as a result of
examinations of Federal income tax returns by the Internal Revenue Service for
past fiscal years through the fiscal year ended December 31, 1993, of RTT have
been paid and settled.
(i) Annexed hereto as Exhibit B is a brief description of all real properties
leased to RTT, and of the equipment it owns located at such leased premises. RTT
owns outright all the equipment in the premises referred to in said Exhibit B,
all other assets and properties used in its business, and all assets and
properties reflected in the balance sheet of RTT, as of June 30, 1994 (Exhibit A
annexed hereto), or acquired by it after said date, other than such assets or
properties sold or otherwise disposed of in the ordinary course of business
subsequent to said date, in each case free and clear of all mortgages, liens,
charges, or encumbrances of any nature whatsoever, except as stated in said
Exhibit B.
(j) Annexed hereto as Exhibit C is a list and brief description of all
patents, patent applications, and trade-xxxx registrations owned by or
registered in the name of RTT or in which it has any rights, and in each case a
brief description of the nature of such rights.
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RTT is not a licensor in respect of any patents, trademarks, trade names,
copyrights, or applications therefor. RTT owns, or possesses adequate licenses
or other rights to use, all patents,-trade-marks, trade names, and copyrights
necessary to conduct its business as now operated by it and has not received any
notice of conflict with the asserted rights of others.
(k) Annexed hereto as Exhibit D is a list and brief description of all
policies of fire, liability, and other forms of insurance held by RTT. Such
policies are in amounts deemed by the management of RTT to be sufficient, and
valid policies in such amounts will be outstanding and duly in force to the
Closing Date, at which time such policies will be assigned to CGS in accordance
herewith.
(l) Annexed hereto as Exhibit E is a list of certain contracts to which RTT is
a party. Except only as listed in said Exhibit, RTT is not a party to any
written or oral (1) contract not made in the ordinary course of business; (2)
employment contract which is not terminable without cost or other liability to
RTT, or any successor, upon notice of 30 days or less; (3) contract with any
labor union; (4) bonus, pension, profit sharing, retirement, stock purchase,
hospitalization, insurance or similar plan providing employee benefits; (5)
lease with respect to any property, real or personal, whether as lessor or
lessee; (6) continuinq contract for the future
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purchase of materials, supplies or equipment in excess of the requirements of
the business of RTT now booked or for normal operating inventories; or (7)
contract continuing over a period of more than one year from its date. RTT has
in all material respects performed all obligations required to be performed by
it to date and is not in default in any material respect under any agreement,
lease or other document to which it is a party.
(m) There are no actions, suits or proceedings pending, or, to the knowledge
of RTT, threatened against or affecting RTT. RTT is not in default with respect
to any judgment, order, writ, injunction, decree, or similar command of any
court or of any federal, state, municipal, or other governmental department,
commission, board, bureau, agency, or instrumentality, domestic or foreign,
affecting it.
(n) To the best of the knowledge, information, and belief of its officers, RTT
has complied with all laws, regulations, and orders applicable to its business.
(o) Since June 30, 1994 RTT has not (1) issued any stock, bonds or other
corporate securities; (2) incurred any obligation or liability (absolute or
contingent) except current liabilities incurred, and obligations under contracts
entered into, in the ordinary course of business; (3) discharged or satisfied
any lien or encumbrance or paid any obligation or liability (absolute
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or contingent) other than current liabilities shown on the balance sheet of RTT
as of June 30, 1994 (Exhibit A hereto), and current liabilities incurred since
that date in the ordinary course of business; (4) declared or made any payment
or distribution to stockholders, or purchased or redeemed any shares of its
capital stock; (5) mortgaged, pledged, or subjected to lien, charge, or any
other encumbrance, any of its assets, tangible or intangible; (6) sold or
transferred any of its tangible assets or cancelled any debts or claims, except
in each case in the ordinary course of business; (7) sold, assigned, or
transferred any patents, trademarks, trade names, copyrights, or other
intangible assets; (8) suffered any extraordinary losses or waived any rights of
substantial value; or (9) entered into any transaction other than in the
ordinary course of business.
(p) The Board of Directors of RTT has duly approved this Plan and Agreement of
Reorganization and the transactions contemplated herein, subject to the approval
thereof by the stockholders of RTT as required under the laws of the State of
New York, and has authorized the execution and delivery hereof by RTT.
4. CGS represents and warrants to RTT as follows:
(a) CGS is a corporation duly organized and existing and in good standing
under the laws of the State of Delaware.
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(b) The authorized capital stock of CGS consists of 10,000 shares of Voting
Common Stock, par value $.01 per share (hereinafter called Voting Common Stock
of CGS), of which 6,783 shares have been validly issued and are now outstanding
and 5,000 shares of Nonvoting Common Stock, none of which are issued.
(c) Annexed hereto as exhibit F is a balance sheet of CGS as of June 30, 1994,
and statements of income and surplus for the six months then ended, reviewed by
B.D.O. Xxxxxxx & Co., independent certified public accountants. Such statements
are correct and complete and present fairly the financial condition of CGS as of
June 30, 1994, and the results of operations of CGS for the six months then
ended. All said financial statements have been prepared in conformity with
generally accepted accounting principles.
(d) There has been no material change in the condition, financial or
otherwise, of CGS as shown in the balance sheet of CGS as of June 30, 1994
(Exhibit F annexed hereto), other than changes occurring in the ordinary course
of business, which changes have not materially adversely affected its business,
properties, or financial condition.
(e) The shares of Common Stock of CGS deliverable pursuant hereto, when issued
and delivered as herein provided: will be validly issued and outstanding shares
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of Common Stock of CGS, fully paid and non-assessable.
(f) The Board of Directors of CGS has approved this Plan and Agreement of
Reorganization and the transactions contemplated herein and has authorized the
execution and delivery hereof by CGS.
NOW, THEREFORE, in consideration of the premises and of the respective
representations and warranties hereinabove set forth, and of the covenants and
agreements herein contained, CGS and RTT hereby agree as follows:
1. (a) On the terms and subject to the conditions herein set forth, RTT hereby
agrees to convey, transfer, assign and deliver to CGS, and CGS agrees to acquire
and accept as hereinafter provided, all the assets, properties, business and
good will of RTT of every kind and description, wherever located, including
without limitation, all property, tangible or intangible, real, personal, or
mixed, accounts receivable, bank accounts, cash and securities, claims and
rights under contracts of RTT, rights to use its corporate name and all other
names or slogans used by RTT in connection with its business or products and all
books and records of RTT relating to its business, all as the same shall exist
at the time of closing referred to in Section 4 hereof (hereinafter called the
Closing Date). The assets and property to be conveyed, transferred, assigned and
delivered to CGS on the Closing Date as herein provided shall, without
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limitation, include all assets and properties of RTT shown on the balance sheet
of RTT as of June 30, 1994 (Exhibit A annexed hereto), and all assets and
property thereafter acquired by RTT prior to the Closing Date, except such
assets and property of RTT as: (1) may have been disposed of prior to the
Closing Date in the ordinary course of business; (2) may have been otherwise
disposed of prior to the Closing Date at the request or with the consent in
writing of CGS; or (3) are listed on Exhibit A-1 annexed hereto.
(b) Subject to the conditions herein set forth, from and after the Closing
Date, CGS shall assume and agrees to pay, perform, and discharge all those
debts, obligations, contracts and liabilities of RTT as set forth on Exhibit G,
all as the same shall exist at the Closing Date, and all debts, obligations, and
liabilities of RTT arising thereafter in connection with the distribution to the
stockholders of RTT of the shares of Common Stock of CGS to be issued and
delivered to RTT hereunder and in connection with the liquidation and
dissolution of RTT; provided, however, that CGS shall assume the obligation of
RTT to distribute to its stockholders such shares of Common Stock of CGS. All
other contingent or absolute liabilities of RTT, including but not limited to
those listed below, shall remain the liability of RTT and shall not be assumed
by
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CGS:
(i) All liability of RTT for federal, state, county, and local taxes
for any period prior or subsequent to the closing date;
(ii) All taxes (federal, state, county, and local), expenses and costs
of RTT incident to or arising out of this agreement (including legal and
accounting fees);
(iii) All liabilities under any leases, labor union agreements or
other contracts to which RTT is a party except those specifically
assumed by CGS; and
(iv) All liabilities of any kind connected with RTT's operation.
(c) The conveyance, transfer, assignment, and delivery of the assets and
property of RTT to CGS, as herein provided, shall be effected by deeds, bills of
sale, endorsements, assignments, drafts, checks, and other instruments of
transfer and conveyance in such form as CGS shall reasonably request.
(d) RTT agrees that it will, at any time and from time to time after the
Closing Date, upon request of CGS, do, execute, acknowledge, and deliver, or
will cause to be done, executed, acknowledged, and delivered, all such further
acts, deeds, assignments, transfers, conveyances, powers of attorney, and
assurances as may be required for
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the better assigning, transferring, granting, conveying, assuring, and
confirming to CGS, or to its successors and assigns, or for aiding and assisting
in collecting and reducing to possession, any or all of the assets or property
to be assigned to CGS as provided herein and any or all obligations of RTT
hereunder.
2. On the terms and subject to the conditions herein set forth, CGS will issue
and deliver to RTT on the Closing Date definitive stock certificates, in such
authorized denominations and registered in the name of RTT or its nominee or
such other names as RTT shall specify in writing, aggregating 753 shares of
Common Stock of CGS.
3. From and after the date hereof, RTT shall afford to the officers and
accredited representatives of CGS free access to the offices, properties and
records of RTT in order that CGS may have full opportunity to make such
investigation as it shall desire of the affairs of RTT.
4. The closing under this Plan and Agreement of Reorganization shall take
place at 10:00 o'clock A.M., Eastern Daylight Time, on October 1, 1994, at the
law offices of Xxx X. Xxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at
such other time and place as the parties hereto shall agree upon.
5. (a) To the extent that the assignment of any contract, license, lease,
commitment, sales order, or
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purchase order to be assigned to CGS as provided herein shall require the
consent of the other party thereto, this Plan and Agreement of Reorganization
shall not constitute an agreement to assign the same if an attempted assignment
would constitute a breach thereof. RTT agrees that it will use its best efforts
to obtain the consent of the other parties to all such contracts, licenses,
leases commitments, sales orders, or purchase orders of RTT to the assignment
thereof to CGS. If such consent is not obtained, RTT will cooperate with CGS in
any reasonable arrangement designed to provide for CGS the benefits under any
such contracts, licenses, leases, commitments, sales orders, or purchase orders,
including enforcement, at the cost and for the benefit of CGS, of any and all
rights of RTT against the party thereto arising out of the breach or
cancellation by such other party or otherwise.
(b) RTT agrees that CGS shall have the right and authority to collect, for
account of CGS, all receivables and other items which shall be transferred to
CGS as provided herein, and to endorse with the name of RTT any checks received
on account of any such receivables or other items. RTT agrees that it will
transfer and deliver to CGS any cash or other property that RTT may receive in
respect of such receivables or other items.
6. (a) RTT will call a meeting of its
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stockholders to be held on September 1, 1994, for the purpose of authorizing (1)
the conveyance, assignment, transfer, and delivery of all the assets,
properties, business, and good will of RTT to CGS upon the terms and conditions
provided herein; and (2) the voluntary dissolution of RTT.
(b) RTT agrees that, promptly upon receipt by it of the stock certificates for
the shares of Common Stock of CGS to be received by RTT as provided in Section 2
hereof, and in any event on or before December 31, 1994, RTT will distribute all
such shares to its stockholders in complete winding up and liquidation of RTT,
and that it will not otherwise dispose of any of such shares.
(c) From and after the Closing Date, RTT will not engage in any business or
other activity except as required to complete the liquidation and dissolution of
RTT as provided herein.
7, The obligations of CGS hereunder are, at the option of CGS, subject to the
conditions that, on or before the Closing Date:
(a) At the meeting of the stockholders of RTT provided for in Section 6 (a)
hereof, the holders of at least a majority of the outstanding shares of RTT
entitled to vote thereat shall have voted in favor of the matter specified in
clause (l) of said Section 6 (a) and the holders of at least two-thirds of such
outstanding
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shares shall have voted in favor of the matter specified in clause (2) of said
Section 6 (a).
(b) All actions, proceedings, instruments and documents required to carry out
this Plan and Agreement of Reorganization, or incidental thereto, and all other
related legal matters, shall have been approved by counsel for CGS.
(c) CGS shall have received an opinion of counsel for RTT, dated the Closing
Date, in form and substance satisfactory to CGS, to the effect that (1) RTT is a
corporation duly organized and existing and in good standing under the laws of
the State of New York and is entitled to own or lease its properties and to
carry on its business at and in the places where such properties are now owned,
leased, or operated or such business is now conducted; (2) RTT has full power
and authority to convey, assign, transfer, and deliver its assets, properties,
business, and good will to CGS as herein provided; (3) all corporate and other
proceedings required to be taken by or on the part of RTT to authorize it to
carry out this Plan and Agreement or Reorganization and so to convey, assign,
transfer, and deliver its assets, properties, business, and good will have been
duly and properly taken; and (4) the vote of the stockholders of RTT taken at
the meeting provided for in Section 6 (a) hereof operates (except for directors'
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action), so far as RTT is concerned, to authorize the conveyance, transfer,
assignment and delivery of all the assets, properties,business and good will of
RTT to CGS in exchange for shares of Common Stock of CGS upon the terms and
conditions provided herein and to bind all stockholders of RTT thereto.
(d) RTT shall have furnished to CGS legal opinions or other evidence, in form
and substance satisfactory to CGS, covering the good and marketable title of RTT
in its properties, free and clear of all mortgages, liens, charges or
encumbrances of any nature whatsoever, except as stated in Exhibit B annexed
hereto.
(e) CGS shall not have discovered any material error, misstatement, or
omission in the representations and warranties made by RTT herein, and all the
terms and conditions of this Plan and Agreement of Reorganization to be complied
with and performed by RTT on or before the Closing Date shall have been complied
with and performed.
(f) The representations and warranties made by RTT herein shall be correct, on
and as of the Closing Date, with the same force and effect (except as to
transactions contemplated herein and to changes occurring in the ordinary course
of business after the date hereof and not materially adversely affecting the
business, properties or financial condition of RTT,) as though such
representations and warranties had been made on and as of
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the Closing Date, and RTT shall have delivered to CGS a certificate, signed by a
duly authorized officer of RTT, to such effect and also as to the compliance by
RTT, as of the Closing Date with the terms and conditions hereof.
8. The obligations of RTT hereunder are, at the option of RTT, subject to the
conditions that, on or before the Closing Date:
(a) All actions, proceedings, instruments and documents required to carry out
this Plan and Agreement of Reorganization, or incidental thereto, shall have
been approved by counsel for RTT.
(b) RTT shall have received an opinion of counsel for CGS, dated the Closing
Date, in form and substance satisfactory to RTT, to the effect that (1) CGS is a
corporation duly organized and existing and in good standing under the laws of
the State of Delaware; (2) all corporate and other proceedings required to be
taken by or on the part of CGS to authorize it to carry out this Plan and
Agreement of Reorganization and to issue and deliver the shares of Common Stock
of CGS deliverable pursuant hereto as provided herein have been duly and
properly taken; and (3) said shares of Common Stock of CGS will, on delivery
thereof to RTT in accordance with the terms hereof, be duly and validly issued,
fully paid and non-assessable.
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(c) RTT shall not have discovered any material error, misstatement or omission
in the representations and warranties made by CGS herein, and all the terms and
conditions of this Plan and Agreement of Reorganization to be complied with and
performed by CGS on or before the Closing Date shall have been complied with and
performed.
(d) RTT shall have obtained an opinion from counsel for CGS to the effect that
the exchange by RTT of its assets, properties, business and good will for shares
of Common Stock of CGS and the assumption of the obligations and liabilities of
RTT by CGS, all in the manner and by the circumstances in which or under which
the same shall be carried out pursuant hereto, will result in a reorganization
within the meaning of the Internal Revenue Code of 1986 as amended and will not
result in taxable income to RTT; and that stockholders of RTT who shall receive
shares of Common Stock of CGS in exchange for their stock in RTT on the
liquidation of RTT pursuant to such reorganization will not have any taxable
gain or deductible loss.
(e) The representations and warranties made by CGS herein shall be correct, on
and as of the Closing Date, with the same force and effect (except as to
transactions contemplated herein and to changes occurring in the ordinary course
of business after the date hereof and not materially adversely affecting the
business, properties
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or financial condition of CGS) as though such representations and warranties had
been made on and as of the Closing Date, and CGS shall have delivered to RTT a
certificate, signed by a duly authorized officer of CGS, as of the Closing Date
with the terms and conditions hereof.
9. CGS and RTT agree that the representations and warranties contained herein
or made hereunder shall expire with the closing hereunder, such closing to be
conclusive evidence that each party is fully satisfied with the facts
constituting the basis of the representations and warranties of the other party.
10. RTT agrees that, between the date hereof and the Closing Date, it will
not, except with the prior written consent of CGs, declare or pay any dividends.
11. CGS agrees that, between the date hereof and the Closing Date, it will
not, except with the prior written consent of RTT, (1) declare or pay any
dividends, or (2) authorize or make any split-up of its capital stock.
12. If the transactions contemplated hereby shall not be consummated, each
party hereto shall pay its own expenses incident to preparation for carrying
this Plan and Agreement of Reorganization into effect and consummating said
transactions.
13. CGS hereby waives compliance by RTT with the
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provisions of any applicable bulk sales law.
14. This Plan and Agreement of Reorganization shall not be assignable by
either party, except with the written consent of the other. Nothing in this Plan
or Agreement of Reorganization, expressed or implied, is intended to confer upon
any person, other than the parties hereto and their successors and assigns, any
rights or remedies under or by reason of this Plan and Agreement of
Reorganization.
15. Any notice, request, instruction or other document to be given hereunder
by either party hereto to the other shall be in writing and delivered personally
or sent by registered mail, postage prepaid, if to CGS, addressed to CGS at 0000
Xxxxxxxx, Xxx Xxxx, XX, and if to RTT, addressed to RTT, Xxx Xxxx Xxxxx, Xxx
Xxxx, XX.
16. This instrument contains the entire agreement between the parties hereto
with respect to the transactions contemplated herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Plan and Agreement of
Reorganization to be duly executed as of the day and year first above written.
Attest: COMPUTER GENERATED SOLUTIONS, INC.
/s/ /s/ Xxxxxx Xxxxxxxx
_________________________ By ___________________________________
Secretary
Xxxxxx Xxxxxxxx, President
Attest:
REAL TIME TECHNOLOGY, INC.
_________________________ /s/ Xxxxxx Xxxxxxxx
Secretary By ___________________________________
Xxxxxx Xxxxxxxx, President
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