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EXHIBIT 2.1
MERGER AGREEMENT
MERGER AGREEMENT, dated this 17th day of December, 1999 is made among
Caminus Corporation, a Delaware corporation having its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Surviving
Company"), Caminus Merger LLC, a Delaware limited liability company and a wholly
owned subsidiary of the Surviving Company having its principal place of business
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Transitory Subsidiary"), and
Caminus LLC, a Delaware limited liability company having its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company").
In consideration of the undertakings herein contained and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
MERGER OF THE TRANSITORY SUBSIDIARY
WITH AND INTO THE COMPANY
1.1 MERGER. The Transitory Subsidiary shall be merged with and into
the Company pursuant to Section 18-209 of the Delaware Limited Liability Company
Act. The Company shall survive the merger contemplated by this Section 1.1 and
shall continue to be governed by the laws of Delaware. The separate existence of
the Transitory Subsidiary shall cease forthwith at the First Merger Effective
Time (as defined below). The merger of the Transitory Subsidiary with and into
the Company shall herein be referred to as the "First Merger."
1.2 MANAGEMENT COMMITTEE AND BOARD APPROVAL. The Management
Committee of the Company has approved this Agreement and the First Merger in
accordance with the Delaware Limited Liability Company Act. The Board of
Directors of the Surviving Company has authorized the execution and performance
of this Agreement by the Surviving Company, including the issuance of the Shares
(as defined below) and the assumption of the Options (as defined below) as
contemplated by the First Merger, in accordance the General Corporation Law of
the State of Delaware.
1.3 MEMBER AND STOCKHOLDER APPROVAL. As soon as practicable after
the execution of this Agreement, the Company shall submit this Agreement to its
members (the "Members") for their approval. The Surviving Company, as the sole
member of the Transitory Subsidiary, has approved this Agreement and the First
Merger pursuant to Section 18-209 of the Delaware Limited Liability Company Act.
The Company, as the sole stockholder of the Surviving Company, has approved the
execution and performance of this Agreement by the Surviving Company, including
the issuance of
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the Shares as contemplated by the First Merger, pursuant to Section 228 of the
General Corporation Law of the State of Delaware.
1.4 FIRST MERGER EFFECTIVE TIME. The First Merger shall be
effective upon the filing of this Agreement or a Certificate of Merger with the
Secretary of State of the State of Delaware, which filing shall be made as soon
as practicable after all required member and stockholder approvals have been
obtained. The time of such effectiveness shall herein be referred to as the
"First Merger Effective Time."
1.5 CONVERSION OF MEMBERSHIP INTERESTS OF THE COMPANY. At the First
Merger Effective Time, by virtue of the First Merger and without any action on
the part of the Surviving Company, the Transitory Subsidiary, the Company, any
Member or any other person, each share of Membership Interest (as defined in the
Limited Liability Company Agreement of the Company, dated May 12, 1998, as
amended (the "LLC Agreement")) of the Company issued and outstanding immediately
prior to the First Merger Effective Time shall be converted into and represent
the right to receive .095238 (the "Conversion Ratio") of one share of common
stock, $0.01 par value per share (the "Common Stock"), of the Surviving Company
(collectively, the "Shares").
1.6 FRACTIONAL SHARES. No certificates or scrip representing
fractional Shares shall be issued to former Members, and such former Members
shall not be entitled to any voting rights, rights to receive any dividends or
distributions or other rights as a stockholder of the Surviving Company with
respect to any fractional Shares that would have otherwise been issued to such
former Members. In lieu of any fractional Shares that would have otherwise been
issued, each former Member that would have been entitled to receive a fractional
Share shall receive such whole number of Shares as is equal to the precise
number of Shares to which such person would be entitled, rounded up or down to
the nearest whole number (with a fractional interest equal to .5 rounded to the
nearest odd number); provided that each such holder shall receive at least one
Share.
1.7 OPTIONS AND WARRANTS.
(a) As of the First Merger Effective Time, all outstanding
options or other rights to purchase shares of Membership Interests of the
Company (the "Outstanding Options"), whether vested or unvested, shall be
assumed by the Surviving Company. Immediately after the First Merger Effective
Time, each Option outstanding at the First Merger Effective Time shall be deemed
to constitute an option to acquire, on the same terms and conditions as were
applicable under such Option immediately prior to the First Merger Effective
Time, such number of shares of Common Stock as is equal to the number of shares
of Membership Interest subject to the unexercised portion of such Option
multiplied by the Conversion Ratio (with any fraction resulting from such
multiplication to be rounded down to the nearest whole number). The exercise
price per share of each such assumed Option shall be equal to the exercise price
of such Option immediately prior to the First Merger Effective Time, divided by
the Conversion Ratio (rounded up to the nearest whole cent). The term,
exercisability, vesting schedule
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and all of the other terms of the Options shall otherwise remain unchanged. As
of the First Merger Effective Time, the Surviving Company shall assume the 1998
Stock Incentive Plan of the Company, including all rights and obligations of the
Company thereunder.
(b) As soon as practicable after the First Merger Effective
Time, the Surviving Company shall deliver to the holders of Options appropriate
notices setting forth such holders' rights pursuant to such Options, as amended
by this Section 1.7, and the agreements evidencing such Options shall continue
in effect on the same terms and conditions (subject to the amendments provided
for in this Section 1.7 and such notice).
1.8 NO FURTHER RIGHTS. From and after the First Merger Effective
Time, no shares of any series of Membership Interest that are outstanding
immediately prior to the First Merger Effective Time shall be deemed to be
outstanding, and the former holders thereof will cease to have any rights with
respect thereto, except as provided herein or by law.
1.9 EXISTING SHARES OF MEMBERSHIP INTEREST OF THE TRANSITORY
SUBSIDIARY. Each membership interest of the Transitory Subsidiary immediately
prior to the First Merger Effective Time shall be converted into and thereafter
evidence one share of Membership Interest of the Company.
1.10 EXISTING SHARES OF SURVIVING COMPANY. Each share of Common
Stock of the Surviving Company issued and outstanding immediately prior to the
First Merger Effective Time shall be canceled and no consideration shall be paid
therefor.
1.11 EXISTING SHARES OF MEMBERSHIP INTEREST IN THE COMPANY. Each
Membership Interest of the Company owned beneficially by the Surviving Company
shall be cancelled and no consideration shall be paid therefor.
1.12 LIMITED LIABILITY COMPANY AGREEMENT. At the First Merger
Effective Time, without any action on the part of the Company or any other party
thereto, the LLC Agreement shall be terminated and shall be of no further force
or effect; provided, however, that the provisions of Article IV of Appendix B of
the LLC Agreement shall survive such termination, and the obligations of the
Company thereunder shall be assumed by the Surviving Company.
1.13 OFFICERS. The officers of the Company as of the First Merger
Effective Time shall continue in office as officers of the Company following the
First Merger Effective Time until the expiration of their respective terms of
office and until their successors have been duly elected and qualified.
ARTICLE II
MERGER OF THE COMPANY
WITH AND INTO THE SURVIVING COMPANY
2.1 MERGER. Immediately following the First Merger Effective Time,
the Company shall be merged with and into the Surviving Company pursuant to
Section 18-209 of the Delaware Limited Liability Company Act and Section 264 of
the General Corporation Law of the State of Delaware. The Surviving Company
shall survive the
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merger contemplated by this Section 2.1 and shall continue to be governed by the
laws of Delaware. The separate existence of the Company shall cease at the
Second Merger Effective Time (as defined below). The merger of the Company with
and into the Surviving Company shall herein be referred to as the "Second
Merger."
2.2 BOARD APPROVAL. The Board of Directors of the Surviving Company
has approved this Agreement and the Merger in accordance the General Corporation
Law of the State of Delaware.
2.3 MEMBER APPROVAL. The Surviving Company, as the sole member of
the Company immediately prior to the Second Merger Effective Time, will approve
this Agreement and the Second Merger pursuant to Section 18-209 of the Delaware
Limited Liability Company Act. Approval by the stockholders of the Surviving
Company shall not be required pursuant to Sections 251 and 264 of the General
Corporation Law of the State of Delaware.
2.4 EFFECTIVE TIME. The Second Merger shall be effective upon the
filing of this Agreement or a Certificate of Merger with the Secretary of State
of the State of Delaware, which filing shall be made as soon as practicable
after the First Merger Effective Time. The time of such effectiveness shall
herein be referred to as the "Second Merger Effective Time."
2.5 CONVERSION OF MEMBERSHIP INTERESTS OF THE COMPANY. At the
Second Merger Effective Time, by virtue of the Second Merger and without any
action on the part of the Surviving Company, the Company or any other person,
each share of Membership Interest of the Company issued and outstanding
immediately prior to the Second Merger Effective Time shall be canceled and no
consideration shall be paid therefor.
2.6 SUCCESSION. As of the Second Merger Effective Time, the
Surviving Company shall succeed to all of the rights, privileges, debts,
liabilities, powers and property of the Company in the manner of and as more
fully set forth in Section 18-209(g) of the Delaware Limited Liability Company
Act and Section 259 of the Delaware General Corporation Law. Without limiting
the foregoing, at the Second Merger Effective Time, all property, rights,
privileges, franchises, patents, trademarks, licenses, registrations and other
assets of every kind and description of the Company shall be transferred to,
vested in and devolved upon the Surviving Company without further act or deed
and all property, rights and every other interest of the Company and the
Surviving Company shall be as effectively the property of the Surviving Company
as they were of the Company and the Surviving Company, respectively. All rights
of creditors of the Company and all liens upon any property of the Company shall
be preserved unimpaired, and all debts, liabilities and duties of the Company,
including, without limitation, all liabilities and duties of the Company shall
attach to the Surviving Company and may be enforced against it to the same
extent as if said debts, liabilities and duties had been incurred or contracted
by it. At the Second Merger Effective Time, the Surviving Company shall enter
into an escrow agreement in substantially the form
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attached as Exhibit A to that certain Purchase Agreement, dated as of July 30,
1999, among the Company, Caminus/DC Acquisition Corp., DC Systems, Inc. and
certain shareholders of DC Systems, Inc.
2.7 CERTIFICATE OF INCORPORATION AND BY-LAWS. The Certificate of
Incorporation of the Surviving Company in effect as of the Second Merger
Effective Time shall continue to be the Certificate of Incorporation of the
Surviving Company until further amended in accordance with the provisions
thereof and applicable law. The By-Laws of the Surviving Company in effect as of
the Second Merger Effective Time shall continue to be the By-Laws of the
Surviving Company until amended in accordance with the provisions thereof and
applicable law.
2.8 DIRECTORS AND OFFICERS. The members of the Board of Directors
and the officers of the Surviving Company as of the Second Merger Effective Time
shall continue in office until the expiration of their respective terms of
office and until their successors have been duly elected and qualified.
ARTICLE III
MISCELLANEOUS
3.1 FURTHER ASSURANCES. From time to time, as and when required by
the Surviving Company or by its successors and assigns, there shall be executed
and delivered on behalf of the Company 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 Company the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of the Company, and otherwise to
carry out the purposes of this Agreement, and the officers and directors of the
Company are fully authorized in the name and on behalf of the Company 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 AND TERMINATION. This Agreement may be amended by the
Management Committee of the Company, the sole member of the Transitory
Subsidiary and the Board of Directors of the Surviving Company at any time prior
to the First Merger Effective Time, provided that an amendment made subsequent
to the approval of this Agreement by the Members of the Company shall not (i)
alter or change the amount or kind of shares, membership interests, securities,
cash, property and/or rights to be received in exchange for or on conversion of
all or any of the shares or membership interests, of any class or series thereof
of such entity, (ii) alter or change any term of the Certificate of
Incorporation of the Surviving Company to be effected by the Second Merger or
(iii) alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or series
of the stock or membership interest of such entity. This Agreement may be
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terminated at any time prior to First Merger Effective Time by the vote of the
Management Committee of the Company, the sole member of the Transitory
Subsidiary or the Board of Directors of the Surviving Company, notwithstanding
prior approval of this Agreement by the Members of the Company, the sole member
of the Transitory Subsidiary or the stockholders of the Surviving Company.
3.3 COUNTERPARTS. This Agreement, 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, each of the parties hereto has caused this
Agreement to be executed and attested on its behalf by its officers thereunto
duly authorized, as of the date first above written.
THE SURVIVING COMPANY:
CAMINUS CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President
THE TRANSITORY SUBSIDIARY:
CAMINUS MERGER LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Authorized Signatory
THE COMPANY:
CAMINUS LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Authorized Signatory
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I, Xxxx X. Xxxxxx, Secretary of Caminus Corporation, a corporation
organized and existing under the laws of the State of Delaware, hereby certify
that the Agreement to which this certificate is attached has been adopted by a
majority of the votes represented by the outstanding shares of capital stock of
the Surviving Company entitled to vote on this Agreement.
WITNESS my hand on this 17th day of December, 1999.
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Secretary
I, Xxxxx X. Xxxxxx, an authorized signatory of Caminus Merger LLC, a
limited liability company organized and existing under the laws of the State of
Delaware, hereby certify that the Agreement to which this certificate is
attached, was approved by the members of said limited liability company
representing at least a majority of the outstanding membership interests of said
limited liability company entitled to vote thereon.
WITNESS my hand on this 17th day of December, 1999.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Authorized Signatory
I, Xxxxx X. Xxxxxx, an authorized signatory of Caminus LLC, a limited
liability company organized and existing under the laws of the State of
Delaware, hereby certify that the Agreement to which this certificate is
attached, was approved by the members of said limited liability company
representing at least a majority of the outstanding membership interests of said
limited liability company entitled to vote thereon.
WITNESS my hand on this 17th day of December, 1999.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Authorized Signatory
