EXHIBIT 10.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Merger Agreement"), dated as of September 8,
1999, by and between Dynatech Corporation, a Massachusetts corporation (the
"Company"), and Dynatech Corporation, a Delaware corporation ("New Dynatech").
WHEREAS, the Company is a corporation duly organized and existing under the
laws of the Commonwealth of Massachusetts;
WHEREAS, New Dynatech is a corporation duly organized and existing under
the laws of the State of Delaware;
WHEREAS, the Company has authority to issue 200,000,000 shares of Common
Stock, no par value per share (the "Company's Common Stock"), of which
120,681,048 shares are issued and outstanding and 100,000 shares of preferred
stock, par value $1.00 per share (the "Company's Preferred Stock"), none of
which has been issued;
WHEREAS, prior to the Effective Date of the Merger (as such terms are
hereinafter defined), additional shares of the Company's Common Stock may be
issued upon the exercise of options to purchase the Company's Common Stock and
pursuant to employee benefit plans of the Company and its subsidiaries;
WHEREAS, New Dynatech has authority to issue 200,000,000 shares of Common
Stock, par value $.01 per share (the "Delaware Common Stock") and 100,000
shares of preferred stock par value $1.00 per share, (the "Delaware Preferred
Stock");
WHEREAS, one hundred (100) shares of the Delaware Common Stock are issued
and outstanding, all of which are owned, beneficially and of record, by the
Company;
WHEREAS, the respective Board of Directors of the Company and New Dynatech
have determined that, for the purpose of effecting the reincorporation of the
Company in the State of Delaware, it is advisable and in the best interest of
both corporations that the Company merge with and into New Dynatech upon the
terms and conditions hereinafter provided and in accordance with the laws of
the State of Delaware and the Commonwealth of Massachusetts in a transaction
qualifying as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the respective Board of Directors of the Company and New Dynatech
have approved this Merger Agreement and directed that this Merger Agreement be
submitted to a vote of their respective stockholders for approval.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and New Dynatech
hereby agree as follows:
1. Merger. Subject to the terms and conditions of this Merger Agreement,
the Company shall be merged with and into New Dynatech (the "Merger") in
accordance with Section 253 of the Delaware General Corporation Law ("DGCL")
and Section 79 of the Massachusetts Business Corporation Law ("MBCL") such
that New Dynatech shall be the surviving corporation (hereinafter referred to
as the "Surviving Corporation"). The Merger shall become effective upon the
date (the "Effective Date") on which a certified copy of this Merger Agreement
or a Certificate of Merger, executed and acknowledged on behalf of New
Dynatech and the Company, in accordance with the requirements of the DGCL and
the MBCL, has been filed with the Delaware Secretary of State and the
Massachusetts Secretary of State.
2. Certificate of Incorporation. The Certificate of Incorporation of New
Dynatech, as in effect on the Effective Date, shall be the Certificate of
Incorporation of the Surviving Corporation without change or amendment, until
thereafter amended in accordance with the provisions thereof and applicable
laws.
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3. Directors, Officers and By-Laws. The directors of the Company
immediately prior to the Effective Date shall be the directors of the
Surviving Corporation, each to hold office in accordance with the Certificate
of Incorporation and the By-Laws of the Surviving Corporation. The officers of
the Company immediately prior to the Effective Date shall be the officers of
the Surviving Corporation, each to hold office in accordance with the
Certificate of Incorporation and the By-Laws of the Surviving Corporation,
except that the person serving as Secretary of New Dynatech shall serve as
Secretary of the Surviving Corporation and the position of Clerk of the
Company shall no longer exist and any person serving in such position shall
not continue as an officer of the Surviving Corporation. The By-Laws of New
Dynatech, as in effect on the Effective Date, shall be the By-Laws of the
Surviving Corporation without change or amendment until thereafter amended in
accordance with the provisions thereof and applicable laws.
4. Succession. From and after the Effective Date, the Surviving Corporation
shall succeed, insofar as permitted by law, to all of the rights, assets,
liabilities and obligations of the Company; and the title to any real estate
vested by deed or otherwise, in either of the Company and/or the Surviving
Corporation, shall not revert or be in any way impaired by reason of the
Merger, but all rights of creditors and all liens on any property of either of
said corporation shall be reserved unimpaired, and all debts, liabilities and
duties of said corporations shall, as of the Effective Date, attach to the
Surviving Corporation, and may be enforced against the Surviving Corporation
to the same extent as if said debts, liabilities, and duties had been incurred
or contracted by it, and any claim existing or action or proceeding pending by
or against any of said corporations may be prosecuted as if the Merger had not
taken place, or the Surviving Corporation may be substituted in its place. The
employees and agents of the Company shall become the employees and agents of
the Surviving Corporation and continue to be entitled to the same rights and
benefits which they enjoyed as employees and agents of the Company.
5. Further Assurances. From time to time as and when requested by the
Surviving Corporation or by its successors and assigns, there shall be
executed and delivered on behalf of the Company and/or the Surviving
Corporation 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, protect or confirm, of record or
otherwise, in the Surviving Corporation the title to and possession of all
property, interest, assets, right, privileges, immunities, powers, franchises,
and authority of the Company, 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 the Company, or otherwise,
to take any and all such action and to execute and deliver any and all such
deeds and other instruments.
6. Conversion of Shares.
(a) Upon the Effective Date, each share of the Company's Common Stock
issued and outstanding or held in the treasury of the Company immediately
prior thereto (other than shares of the Company's Common Stock in respect of
which dissenters' rights shall properly have been exercised in accordance with
the MBCL) shall, by virtue of the Merger and without any action on the part of
any holder thereof, be changed and converted into one fully paid and non
assessable share of Delaware Common Stock.
(b) Upon the Effective Date, each share of the Company's Preferred Stock
issued and outstanding or held in the treasury of the Company immediately
prior thereto shall, by virtue of the Merger and without any action on the
part of any holder thereof, be changed and converted into one fully paid and
non assessable share of Delaware Preferred Stock.
(c) Upon the Effective Date, the one hundred (100) shares of Delaware
Common Stock currently issued and outstanding in the name of the Company shall
be canceled and retired without any consideration being issued or paid
therefor and shall resume the status of authorized and unissued shares of
Delaware Common Stock, and no shares of Delaware Common Stock or other
securities of the Surviving Corporation shall be issued in respect thereof.
(d) Each outstanding option to purchase shares of the Company's Common
Stock under any of the stock option or stock purchase plans of the Company (an
"Old Option") and outstanding immediately prior to the
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Effective Date shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into and become an option (the "New
Option") to purchase, upon the same terms and conditions, the number of shares
of Delaware Common Stock which is equal to the same number of shares of
Company's Common Stock which may be purchased under such Old Option. The
exercise price per share under each New Option shall be equal to the exercise
price per share immediately prior to the Effective Date with respect to each
Old Option. All of the Company's stock option plans and stock options granted
thereunder, outstanding immediately prior to the Effective Date are
automatically amended to permit plan continuance and stock option continuance
and conversion into those of the Surviving Corporation following the Merger
notwithstanding any provisions heretofore contained in such plans or
outstanding options providing for termination in the event of a merger in
which the Company is not the surviving corporation.
7. Stock Certificates. Upon the Effective Date, each certificate
representing issued and outstanding shares of the Company's Common Stock
(other than shares of the Company's Common Stock in respect of which
dissenters' rights shall properly have been exercised in accordance with the
MBCL) shall be deemed and treated for all purposes as representing the shares
of Delaware Common Stock into which such shares of the Company's Common Stock
have been converted. Each stockholder of the Company may, but is not required
to, exchange any existing stock certificates representing shares of the
Company's Common Stock for stock certificates representing the same number of
shares of Delaware Common Stock. All shares of Delaware Common Stock into
which shares of the Company's Common Stock shall have been converted pursuant
to this Merger Agreement shall be deemed to have been issued in full
satisfaction of all rights pertaining to such converted shares. When the
Merger becomes effective, the holders of certificates representing the
Company's Common Stock outstanding prior to the Effective Date (except for
shares of the Company's Common Stock in respect of which dissenters' rights
shall have been properly exercised in accordance with the MBCL) shall cease to
have any rights with respect to such stock, and their sole rights shall be
with respect to the Delaware Common Stock into which their shares of the
Company's Common Stock are to be converted by the Merger. Upon the Effective
Date, the stock transfer books of the Company shall be closed and no transfer
of shares of the Company's Common Stock outstanding immediately prior to the
Effective Date shall thereafter be made or consummated.
8. Employee Option and Benefit Plans and Other Stock Rights. As of the
Effective Date: (a) all employee option, benefit or compensation plans of the
Company (collectively, the "Plans") and all obligations of the Company under
the Plans, including the outstanding options granted pursuant to the Plans,
and (b) all obligations of the Company under all other benefit or compensation
plans and outstanding stock rights in effect as of the Effective Date with
respect to which employee rights or accrued benefits or other rights are
outstanding as of the Effective Date, shall be assumed by, and continue to be
the plan of, the Surviving Corporation. To the extent any employee option,
benefit or compensation plan of the Company provided for the issuance or
purchase of, or otherwise related to, the Company's Common Stock, after the
Effective Date such plan shall be deemed to provide for the issuance or
purchase of, or otherwise relate to, Delaware Common Stock.
9. Stockholder Approval. This Merger Agreement shall be submitted to a vote
of the stockholders of the Company and the sole stockholder of New Dynatech in
accordance with the laws of the Commonwealth of Massachusetts and the State of
Delaware, respectively. In the event that this Merger Agreement shall be not
approved by the requisite vote of holders of two-thirds of the Company's
Common Stock outstanding and entitled to vote at the Company's 1999 annual
meeting or any adjournment thereof, this Merger Agreement shall thereupon be
terminated without further action of the parties hereto.
10. Plan of Reorganization. This Agreement is intended to be a plan of
reorganization within the meaning of Section 368(a) of the Code and the
Treasury Regulations promulgated thereunder.
11. Amendment. Subject to applicable law, this Merger Agreement may be
amended, modified or supplemented by written agreement of the parties hereto
at any time prior to the Effective Date with respect to any of the items
contained herein.
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12. Abandonment. 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 New Dynatech or the Company or both, notwithstanding the
approval of this Merger Agreement by the stockholders of the Company or the
sole stockholder of New Dynatech.
13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts, except to the
extent the laws of the State of Delaware are required to apply to the Merger.
IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf of
the Company and New Dynatech by their respective duly authorized officers as
of the date first written above.
DYNATECH CORPORATION,
a Massachusetts corporation
/s/ Xxxx X.X. Xxxxxxxx
_____________________________________
Xxxx X.X. Xxxxxxxx
Corporate Vice President and General
Counsel
DYNATECH CORPORATION,
a Delaware corporation
/s/ Xxxx X.X. Xxxxxxxx
_____________________________________
Xxxx X.X. Xxxxxxxx
Secretary
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