AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of November ___, 1996, by and between ROGUE WAVE
SOFTWARE, INC., a Oregon corporation ("RW Oregon"), and RW ACQUISITION
CORPORATION, a Delaware corporation ("RW Delaware"). RW Oregon and RW Delaware
are sometimes referred to as the "Constituent Corporations."
The authorized capital stock of RW Oregon consists of thirteen million
(13,000,000) shares of Common Stock, par value $0.001 per share, and two million
three hundred fifty thousand (2,350,000) shares of Preferred Stock, par value
$0.001 per share. The authorized capital stock of RW Delaware, upon
effectuation of the transactions set forth in this Merger Agreement, will
consist of thirty five million (35,000,000) shares of Common Stock, $.001 par
value, and two million three hundred fifty thousand (2,350,000) shares of
Preferred Stock, $.001 par value.
The directors of the Constituent Corporations deem it advisable and to the
advantage of the Constituent Corporations that RW Oregon merge into RW Delaware
upon the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that RW Oregon shall
merge into RW Delaware on the following terms, conditions and other provisions:
1. TERMS AND CONDITIONS.
1.1 MERGER. RW Oregon shall be merged with and into RW Delaware (the
"Merger"), and RW Delaware shall be the surviving corporation (the "Surviving
Corporation") effective upon the date when this Merger Agreement is filed with
the Secretary of State of Delaware (the "Effective Date").
1.2 NAME CHANGE. On the Effective Date, the name of RW Delaware shall be
Rogue Wave Software, Inc.
1.3 SUCCESSION. On the Effective Date, RW Delaware shall continue its
corporate existence under the laws of the State of Delaware, and the separate
existence and corporate organization of RW Oregon, except insofar as it may be
continued by operation of law, shall be terminated and cease.
1.4 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the
1.
Constituent Corporations; and all and singular rights, privileges, powers and
franchises of each of the Constituent Corporations, and all property, real,
personal and mixed, of each of the Constituent Corporations, and all debts due
to each of the Constituent Corporations on whatever account, and all things in
action or belonging to each of the Constituent Corporations shall be transferred
to and vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest, shall be
thereafter the property of the Surviving Corporation as they were of the
Constituent Corporations, and the title to any real estate vested by deed or
otherwise in either of the Constituent Corporations shall not revert or be in
any way impaired by reason of the Merger; provided, however, that the
liabilities of the Constituent Corporations and of their shareholders, directors
and officers shall not be affected and all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired, and any claim existing or action or proceeding pending by or against
either of the Constituent Corporations may be prosecuted to judgment as if the
Merger had not taken place except as they may be modified with the consent of
such creditors and all debts, liabilities and duties of or upon each of the
Constituent Corporations shall attach to the Surviving Corporation, and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it.
1.5 COMMON STOCK OF RW OREGON AND RW DELAWARE. On the Effective Date, by
virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, each three (3) shares of Common
Stock of RW Oregon issued and outstanding immediately prior thereto shall be
converted into two (2) fully paid and nonassessable shares of the Common Stock
of RW Delaware and each share of Common Stock of RW Delaware issued and
outstanding immediately prior thereto shall be cancelled and returned to the
status of authorized but unissued shares.
1.6 PREFERRED STOCK OF RW OREGON AND RW DELAWARE. On the Effective Date,
by virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, each three (3) shares of Series
A Preferred Stock of RW Oregon issued and outstanding immediately prior thereto
shall be converted into two (2) fully paid and nonassessable shares of Series A
Preferred Stock of RW Delaware and each three (3) shares of Series B Preferred
Stock of RW Oregon issued and outstanding immediately prior thereto shall be
converted into two (2) fully paid and nonassessable share of Series B Preferred
Stock of RW Delaware.
1.7 STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock or of the Preferred Stock of RW Oregon shall be deemed for all
purposes to evidence ownership of and to represent the shares of RW Delaware
into which the shares of RW Oregon represented by such certificates have been
converted as herein provided and shall be so registered on the books and records
of the Surviving Corporation or its transfer agents.
2.
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 the Surviving Corporation or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to and to receive
any dividend and other distributions upon the shares of RW Delaware evidenced by
such outstanding certificate as above provided.
1.8 OPTIONS. On the Effective Date, the Surviving Corporation will assume
and continue RW Oregon's 1994 Stock Option Plan, Inmark Stock Option Plan and
Employee Stock Purchase Plan and the outstanding and unexercised portions of all
options to purchase Common Stock of RW Oregon, including without limitation all
options outstanding under such stock plans and any other outstanding options,
shall be converted into options of RW Delaware, such that an option for three
(3) shares of RW Oregon shall be converted into an option for two (2) shares of
RW Delaware, and the exercise price of the RW Delaware option shall be equal to
one and one half (1.5) times the exercise price of the RW Oregon option. No
other changes in the terms and conditions of such options will occur. Effective
on the Effective Date, RW Delaware hereby assumes the outstanding and
unexercised portions of such options and the obligations of RW Oregon with
respect thereto.
1.9 EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving
Corporation shall assume all obligations of RW Oregon under any and all employee
benefit plans in effect as of such date. On the Effective Date, the Surviving
Corporation shall adopt and continue in effect all such employee benefit plans
upon the same terms and conditions as were in effect immediately prior to the
Merger and shall reserve that number of shares of RW Delaware Common Stock with
respect to each such employee benefit plan as is proportional to the number of
shares of RW Oregon Common Stock (if any) so reserved on the Effective Date.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of RW Delaware in effect on the Effective Date shall
continue to be the Certificate of Incorporation and Bylaws of the Surviving
Corporation, except that Article I of the Certificate of Incorporation and
Bylaws of the Surviving Corporation shall, effective upon the filing of this
Merger Agreement with the Secretary of State of the State of Delaware, be
amended to read in its entirety as follows: "The name of this corporation is
Rogue Wave Software, Inc."
2.2 DIRECTORS. The directors of RW Oregon immediately preceding the
Effective Date shall become the directors of the Surviving Corporation on and
after the Effective Date to serve until the expiration of their terms and until
their successors are elected and qualified.
3.
2.3 OFFICERS. The officers of RW Oregon immediately preceding the
Effective Date shall become the officers of the Surviving Corporation on and
after the Effective Date to serve at the pleasure of its Board of Directors.
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 RW Oregon 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 conform
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 RW Oregon 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 RW Oregon or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
3.2 AMENDMENT. At any time before or after approval by the shareholders
of RW Oregon, this Merger Agreement may be amended in any manner (except that,
after the approval of the Merger Agreement by the shareholders of RW Oregon, the
principal terms may not be amended without the further approval of the
shareholders of RW Oregon) as may be determined in the judgment of the
respective Board of Directors of RW Delaware and RW Oregon 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 TO MERGER. The 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 RW
Oregon in accordance with applicable provisions of the General Corporation Law
of the State of Oregon; and
(b) RW Oregon, as sole stockholder of RW Delaware, shall have
approved the Merger in accordance with the General Corporation Law of the State
of Delaware;
(c) any and all consents, permits, authorizations, approvals, and
orders deemed in the sole discretion of RW Oregon to be material to consummation
of the Merger shall have been obtained; and
4.
(d) no shareholders of RW Oregon shall have exercised their
dissenters' rights.
3.4 ABANDONMENT OR DEFERRAL. At any time before the Effective Date, this
Merger Agreement may be terminated and the Merger may be abandoned by the Board
of Directors of either RW Oregon or RW Delaware or both, notwithstanding the
approval of this Merger Agreement by the shareholders of RW Oregon or RW
Delaware, 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 RW Oregon and RW
Delaware, such action would be in the best interest of such corporations. 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 RW Oregon shall pay all expenses incurred in
connection with the Merger or in respect of this Merger Agreement or relating
thereto.
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.
5.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by the Board of Directors of RW Oregon and RW Delaware, is hereby executed on
behalf of each said corporation and attested by their respective officers
thereunto duly authorized.
ROGUE WAVE SOFTWARE, INC.
An Oregon corporation
By
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Xxxxxx Xxxxxx
President
ATTEST:
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Xxxxxx X. Xxxxxxx, Xx.
Secretary
RW ACQUISITION CORPORATION
A Delaware corporation
By
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Xxxxxx Xxxxxx
President
ATTEST:
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Xxxxxx X. Xxxxxxx, Xx.
Secretary
