Exhibit 2
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), dated as of
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December 27, 2000, and effective as of January 1, 2001, pursuant to Section 251
of the Delaware General Corporation Law (the "DGCL") is made and entered into
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by and among MetaSolv Software, Inc., a Delaware corporation ("MetaSolv"), MS
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Merger, Inc., a Delaware corporation ("Merger Sub"), and MetaSolv, Inc., a
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Delaware corporation that holds all of the outstanding capital stock of Merger
Sub ("Holdings").
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RECITALS
WHEREAS, as of the date hereof, the authorized capital stock of MetaSolv
consists of (i) 100,000,000 shares of common stock, par value $.005 per share
"MetaSolv Common Stock"), of which 35,927,025 shares were issued and outstanding
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and (ii) 10,000,000 shares of preferred stock, par value $.01 per share, of
which none is outstanding;
WHEREAS, as of the date hereof, the authorized capital stock of Holdings
consists of (i) 100,000,000 shares of common stock, par value $.005 per share
("Holdings Common Stock"), of which 1,000 shares are issued and outstanding, and
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(ii) 10,000,000 shares of preferred stock, par value $.01 per share, of which
none is outstanding;
WHEREAS, as of the date hereof, the authorized capital stock of Merger Sub
consists of 1,000 shares of common stock, par value $.005 per share ("Merger Sub
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Common Stock"), of which 1,000 shares are issued and outstanding;
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WHEREAS, the designations, rights and preferences, and the qualifications,
limitations and restrictions thereof, of the Holdings Common Stock are the same
as those of the MetaSolv Common Stock;
WHEREAS, the Certificate of Incorporation and Bylaws of Holdings
immediately after the Effective Time (as hereinafter defined) will contain
provisions identical to the Third Amended and Restated Certificate of
Incorporation and Bylaws of MetaSolv immediately before the Effective Time
(other than with respect to matters excepted by Section 251(g) of the DGCL);
WHEREAS, the directors of MetaSolv immediately prior to the Merger (as
hereinafter defined) will be the directors of Holdings as of the Effective Time;
WHEREAS, Holdings and Merger Sub are newly formed corporations organized
for the purpose of participating in the transactions herein contemplated;
WHEREAS, MetaSolv desires to create a new holding company structure by
merging Merger Sub with and into MetaSolv with MetaSolv being the surviving
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corporation (sometimes hereinafter referred to as the "Surviving Corporation"),
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and converting each share of MetaSolv Common Stock into one share of Holdings
Common Stock, all in accordance with the terms of this Agreement;
WHEREAS, the Boards of Directors of Holdings, Merger Sub and MetaSolv have
approved this Agreement and the merger of Merger Sub with and into MetaSolv upon
the terms and subject to the conditions set forth in this Agreement (the
"Merger"); and
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WHEREAS, pursuant to authority granted by the Board of Directors of
MetaSolv, MetaSolv will, immediately prior to the Effective Time, contribute to
the capital of Holdings any shares of MetaSolv Common Stock then held by
MetaSolv in its treasury.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained in this Agreement, and intending to be legally bound
hereby, MetaSolv, Holdings and Merger Sub hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. In accordance with Section 251(g) of the DGCL and
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subject to and upon the terms and conditions of this Agreement, Merger Sub
shall, at the Effective Time, be merged with and into MetaSolv, the separate
corporate existence of Merger Sub shall cease and MetaSolv shall continue as the
surviving corporation. MetaSolv as the surviving corporation after the Merger is
hereinafter sometimes referred to as the "Surviving Corporation." At the
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Effective Time, the effect of the Merger shall be as provided in Section 259 of
the DGCL.
Section 1.2 Effective Time. The Merger shall become effective at 12:01
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a.m., Eastern Standard Time, on January 1, 2001 (such time being referred to
herein as the "Effective Time").
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Section 1.3 Third Amended and Restated Certificate of Incorporation of
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the Surviving Corporation. From and after the Effective Time, the Third Amended
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and Restated Certificate of Incorporation of MetaSolv, as in effect immediately
prior to the Effective Time, shall be further amended and restated as set forth
and as so amended and restated shall thereafter continue in full force and
effect as the certificate of incorporation of the Surviving Corporation until
thereafter amended as provided by law.
(a) Article IV thereof shall be amended so at to read in its entirety
as follows:
"The Corporation is authorized to issue one class of stock, to be
designated common stock ("Common Stock"). The number of shares of Common Stock
authorized to be issued is One Thousand (1,000), par value $.005 per share."
(b) A new Article XI shall be added thereto which shall be and read in
its entirety as follows:
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"Any act or transaction by or involving the Corporation that requires for
its adoption under the General Corporation Law of the State of Delaware or this
Amended Certificate of Incorporation the approval of the stockholders of the
Corporation shall, pursuant to Section 251(g) of the General Corporation Law of
the State of Delaware, require, in addition, the approval of the stockholders of
MetaSolv, Inc., a Delaware corporation, or any successor thereto by merger, by
the same vote that is required by the General Corporation Law of the State of
Delaware and/or this Amended Certificate of Incorporation. Notwithstanding the
foregoing, nothing in this Article XI shall be deemed or construed to require
the approval of the stockholders of MetaSolv, Inc. to elect or remove directors
of the Corporation."
Section 1.4 Bylaws. From and after the Effective Time, the Amended and
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Restated Bylaws of MetaSolv, as in effect immediately prior to the Effective
Time, shall be the Bylaws of the Surviving Corporation until thereafter amended
as provided therein or by applicable law.
Section 1.5 Directors. The directors of MetaSolv immediately prior to the
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Effective Time shall be the initial directors of the Surviving Corporation and
will hold office from the Effective Time until their successors are duly elected
or appointed and qualified in the manner provided in the Fourth Amended and
Restated Certificate of Incorporation and Bylaws of the Surviving Corporation or
as otherwise provided by law.
Section 1.6 Officers. The officers of MetaSolv immediately prior to the
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Effective Time shall be the initial officers of the Surviving Corporation and
will hold office from the Effective Time until their successors are duly elected
or appointed and qualified in the manner provided in the Fourth Amended and
Restated Certificate of Incorporation and the Bylaws of the Surviving
Corporation or as otherwise provided by law.
Section 1.7 Additional Actions. Subject to the terms of this Agreement,
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the parties hereto shall take all such reasonable and lawful action as may be
necessary or appropriate in order to effectuate the Merger and to comply with
the requirements of Section 251(g) of the DGCL. If at any time after the
Effective Time, the Surviving Corporation shall consider or be advised that any
deeds, bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm, of record in the Surviving
Corporation its right, title, or interest in, to or under any of the rights,
properties or assets of either of Merger Sub or MetaSolv acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with, the
Merger or otherwise to carry out this Agreement, the officers and directors of
the Surviving Corporation shall be authorized to execute and deliver, in the
name and on behalf of each of Merger Sub and MetaSolv, all such deeds, bills of
sale, assignments and assurances and to take and do, in the name and on behalf
of each of Merger Sub and MetaSolv or otherwise, all such other actions and
things as may be necessary or desirable to vest, perfect or confirm any and all
right, title and interest in, to and under such rights,
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properties or assets in the Surviving Corporation or otherwise to carry out this
Agreement.
Section 1.8 Conversion of Securities. At the Effective Time, by virtue of
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the Merger and without any action on the part of Holdings, Merger Sub, MetaSolv
or the holder of any of the following securities:
(a) Each share of MetaSolv Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into and thereafter
represent the right to receive one duly issued, fully paid and nonassessable
share of Holdings Common Stock with its rights being preserved, unimpaired,
unchanged and unaffected by such conversion in the Merger.
(b) Each share of Merger Sub Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into and thereafter
represent one duly issued, fully paid and nonassessable share of common stock,
par value $.005 per share, of the Surviving Corporation.
(c) Each share of Holdings Common Stock issued and outstanding
immediately prior to the Effective Time shall automatically be canceled and
retired and cease to exist.
(d) From and after the Effective Time, holders of certificates formerly
evidencing MetaSolv Common Stock shall cease to have any rights as stockholders
of MetaSolv, except as provided by law; provided, however, that such holders
shall have the rights set forth in Section 1.9 herein.
Section 1.9 No Surrender of Certificates; Stock Transfer Books. At the
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Effective Time, the designations, rights, powers and preferences, and
qualifications, limitations and restrictions thereof, of the capital stock of
Holdings will, in each case, be identical with those of MetaSolv immediately
prior to the Effective Time. Accordingly, until thereafter surrendered for
transfer or exchange in the ordinary course, each outstanding certificate that,
immediately prior to the Effective Time, evidenced MetaSolv Common Stock shall,
from the Effective Time, be deemed and treated for all corporate purposes to
evidence the ownership of the same number of shares of Holdings Common Stock.
Section 1.10 Stockholder Approval. Holdings, in its capacity as the sole
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stockholder of Merger Sub, by its execution hereof, approves and adopts this
Agreement and the transactions contemplated hereby.
ARTICLE II
ACTIONS TO BE TAKEN IN
CONNECTION WITH THE MERGER
Section 2.1 Assumption of Plans. Holdings and MetaSolv hereby agree that
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they will, at the Effective Time, execute, acknowledge and deliver an assumption
agreement pursuant to which Holdings will, from and after the Effective Time,
assume
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and agree to perform all obligations of MetaSolv pursuant to the Long-Term
Incentive Plan of MetaSolv, the Employee Stock Purchase Plan of MetaSolv and the
1992 Stock Option Plan of MetaSolv (collectively, the "Plans"), each stock
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option agreement entered into pursuant thereto, and each outstanding stock
option granted thereunder.
Section 2.2 Assumption of Agreements. Holdings and MetaSolv hereby agree
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that they will, at the Effective Time, execute, acknowledge and deliver an
assumption agreement pursuant to which Holdings will, from and after the
Effective Time, assume and agree to perform all obligations of MetaSolv pursuant
to (i) that certain Transfer Agent Services Agreement by and between MetaSolv
and ChaseMellon Shareholder Services, L.L.C., (ii) that certain Employee Stock
Purchase Plan of MetaSolv, (iii) that certain Long-Term Incentive Plan of
MetaSolv, (iv) that certain 1992 Stock Option Plan of MetaSolv, (v) that certain
Indemnification Agreement by and between MetaSolv and Xxxxxxxx X. Xxxxxx, (vi)
that certain Indemnification Agreement by and between MetaSolv and Xxxxx X.
Xxxxxx, (vii) that certain Indemnification Agreement by and between MetaSolv and
Xxxxx X. Xxxxxxx, (viii) that certain Indemnification Agreement by and between
MetaSolv and Xxxxx X. Xxxxxxx, (ix) that certain Indemnification Agreement by
and between MetaSolv and Xxxxx X. Xxxxxx, (x) that certain Indemnification
Agreement by and between MetaSolv and Xxxx Xxxxxxxx, (xi) that certain
Indemnification Agreement by and between MetaSolv and Xxxx Xxxxx, (xii) that
certain Indemnification Agreement by and between MetaSolv and Xxxxxx X. Xxxx,
(xiii) that certain Indemnification Agreement by and between MetaSolv and Xxxxx
X. Xxxxxxxxxxx, (xiv) that certain Indemnification Agreement by and between
MetaSolv and Xxxxxxxx X. Xxxxxx, (xv) that certain Indemnification Agreement by
and between MetaSolv and Xxxxxx X. Xxxxxxx, (xvi) that certain Indemnification
Agreement by and between MetaSolv and Xxxx X. Xxxxx, and (xvii) that certain
Indemnification Agreement by and between MetaSolv and Xxxxxxx X. Xxxx.
Section 2.3 Reservation of Shares. On or prior to the Effective Time,
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Holdings will reserve sufficient shares of Holdings Common Stock to provide for
the issuance of Holdings Common Stock upon exercise of options and other rights
outstanding under the Plans.
ARTICLE III
CONDITION OF MERGER
Section 3.1 Condition Precedent. The obligations of the parties to this
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Agreement to consummate the Merger and the transactions contemplated by this
Agreement shall be subject to fulfillment or waiver by the parties hereto at or
prior to the Effective Time of the following condition:
(a) No order, statute, rule, regulation, executive order, injunction,
stay, decree, judgment or restraining order that is in effect shall have been
enacted, entered, promulgated or enforced by any court or governmental or
regulatory authority or instrumentality that prohibits or makes illegal the
consummation of the Merger or the transactions contemplated hereby.
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ARTICLE IV
COVENANTS
Section 4.1 Election of Directors. Effective as of the Effective Time,
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MetaSolv, in its capacity as the sole stockholder of Holdings, will, if
necessary to comply with Section 251(g) of the DGCL, remove each of the then
directors of Holdings, cause the board of directors of Holdings to effect such
amendments to the bylaws of Holdings as are necessary to increase the number of
directors of Holdings to equal the number of directors of MetaSolv immediately
prior to the Effective Time, and elect each person who is then a member of the
board of directors of MetaSolv as a director of Holdings, each of whom shall
serve until the next annual meeting of stockholders of Holdings and until his
successor shall have been elected and qualified.
Section 4.2 The Plans. MetaSolv and Holdings will take or cause to be
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taken all actions necessary or desirable in order for Holdings to assume the
Plans, each stock option agreement entered into pursuant thereto, and each stock
option or other right granted thereunder (and to assume (or become a
participation employer in) each other existing employee benefit plan and
agreement of MetaSolv, with or without amendments, or to adopt comparable plans)
all to the extent deemed appropriate by MetaSolv and Holdings as permitted under
applicable law.
Section 4.3 Contribution of Treasury Stock. Immediately prior to the
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Effective Time, MetaSolv will contribute to the capital of Holdings any shares
of MetaSolv Common Stock then held in the treasury of MetaSolv.
Section 4.4 Contribution of Outstanding Holdings Stock. At the Effective
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Time, MetaSolv will contribute to the capital of Holdings all shares of Holdings
Common Stock outstanding immediately prior to the Effective Time and owned of
record and beneficially by MetaSolv.
ARTICLE V
TERMINATION AND AMENDMENT
Section 5.1 Termination. This Agreement may be terminated and the Merger
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contemplated hereby may be abandoned at any time prior to the Effective Time by
action of the Board of Directors of MetaSolv, the Board of Directors of Holdings
or the Board of Directors of Merger Sub if either such Board of Directors should
determine that for any reason the completion of the transactions provided for
herein would be inadvisable or not in the best interest of such corporation or
its stockholders. In the event of such termination and abandonment, this
Agreement shall become void and neither MetaSolv or Merger Sub, nor their
respective stockholders, directors or officers, shall have any liability with
respect to such termination and abandonment.
Section 5.2 Amendment. At any time prior to the Effective Time, this
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Agreement may, to the extent permitted by the DGCL, be supplemented, amended or
modified by the mutual consent of the Boards of Directors of the parties to this
Agreement.
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ARTICLE VI
MISCELLANEOUS
Section 6.1 Governing Law. This Agreement shall be governed by and
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construed and enforced under the laws of the State of Delaware.
Section 6.2 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which when executed shall be deemed to be an original but
all of which shall constitute one and the same agreement.
Section 6.3 Entire Agreement. This Agreement, including the documents and
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instruments referred to herein, constitutes the entire agreement and supersedes
all other prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
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IN WITNESS WHEREOF, MetaSolv, Holdings and Merger Sub have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
METASOLV SOFTWARE, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chief Executive Officer
METASOLV, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chief Executive Officer
MS MERGER, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chief Executive Officer
CERTIFICATE OF THE SECRETARY
OF
METASOLV INC.
I, Xxxxxxxx X. Xxxxxx, the Secretary of MetaSolv Software, Inc., hereby
certify that the Agreement and Plan of Merger to which this certificate is
attached was duly adopted pursuant to Section 251(g) of the DGCL and that the
conditions specified in the first sentence of Section 251(g) of the DGCL have
been satisfied.
WITNESS, my hand and the seal of MetaSolv Software, Inc. this 27/th/ day of
December, 2000.
[SEAL] /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx, Secretary
CERTIFICATE OF THE SECRETARY
OF
METASOLV, SOFTWARE, INC.
I, Xxxxxxxx X. Xxxxxx, the Secretary of MetaSolv, Inc., hereby certify that
the Agreement and Plan of Merger to which this certificate is attached was duly
adopted pursuant to Section 251(g) of the DGCL and that the conditions specified
in the first sentence of Section 251(g) of the DGCL have been satisfied.
WITNESS, my hand and the seal of MetaSolv, Inc. this 27/th/ day of
December, 2000.
[SEAL] /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx, Secretary
CERTIFICATE OF THE SECRETARY
OF
MS MERGER, INC.
I, Xxxxxxxx X. Xxxxxx, the Secretary of MS Merger, Inc., hereby certify
that the Agreement and Plan of Merger to which this certificate is attached was
duly adopted pursuant to Section 251(g) of the DGCL and that the conditions
specified in the first sentence of Section 251(g) of the DGCL have been
satisfied.
WITNESS, my hand and the seal of MS Merger, Inc. this 27th day of December,
2000.
[SEAL] /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx, Secretary
