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EXHIBIT 2.1
AGREEMENT
AND
PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of March
30, 1998 between MAPICS, Inc., a Massachusetts corporation ("MAPICS-Mass."), and
MAPICS, Inc., a Georgia corporation ("MAPICS-Georgia"; together with
MAPICS-Mass., the "Constituent Corporations") and a wholly-owned subsidiary of
MAPICS-Mass., sets forth certain agreements in connection with the merger of
MAPICS-Mass. with and into MAPICS-Georgia (the "Merger").
WITNESSETH:
WHEREAS, as of the date hereof, MAPICS-Mass. has the following
authorized capital stock: (a) 50,000,000 shares of common stock, $.01 par value
per share ("MAPICS-Mass. Common Stock"), and (b) 1,000,000 shares of preferred
stock, $1.00 par value per share ("MAPICS-Mass. Preferred Stock), of which (i) 1
share has been designated Series A Preferred Stock ("MAPICS-Mass. Series A
Preferred Stock"), (ii) 1 share has been designated Series B Preferred Stock
("MAPICS-Mass. Series B Preferred Stock"), (iii) 1 share has been designated
Series C Preferred Stock ("MAPICS-Mass. Series C Preferred Stock"), (iv) 225,000
shares have been designated Series D Convertible Preferred Stock ("MAPICS-Mass.
Series D Preferred Stock"), (v) 100,000 shares have been designated Series E
Convertible Preferred Stock ("MAPICS-Mass. Series E Preferred Stock) and (vi)
30,000 shares have been designated Series F Junior Participating Preferred Stock
(MAPICS-Mass. Series F Preferred Stock"). The MAPICS-Mass. Common Stock and the
MAPICS-Mass. Preferred Stock are collectively referred to herein as the
"MAPICS-Mass. Stock."
WHEREAS, as of the date hereof, there are outstanding (a) 18,574,522
shares of MAPICS-Mass. Common Stock, (b) no shares of MAPICS-Mass. Series A
Preferred Stock, (c) no shares of MAPICS-Mass. Series B Preferred Stock, (d) no
shares of MAPICS-Mass. Series C Preferred Stock, (e) 225,000 shares of
MAPICS-Mass. Series D Preferred Stock, (f) 100,000 shares of MAPICS-Mass. Series
E Preferred Stock and (g) no shares of MAPICS-Mass. Series F Preferred Stock.
WHEREAS, as of the date hereof, MAPICS-Georgia has the following
authorized capital stock: (a) 50,000,000 shares of common stock, $.01 par value
per share ("MAPICS-Georgia Common Stock"), and (b) 1,000,000 shares preferred
stock, $1.00 par value per share ("MAPICS-Georgia Preferred Stock), of which (i)
225,000 shares have been designated Series D Convertible Preferred Stock, (ii)
100,000 shares have been designated Series E Convertible Preferred Stock and
(iii) 30,000 shares have been designated Series F Junior Participating Preferred
Stock. The MAPICS-Georgia Common Stock and the MAPICS-Georgia Preferred Stock
are collectively referred to herein as the "MAPICS-Georgia Stock."
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WHEREAS, as of the date hereof, there are outstanding 100 shares of
MAPICS-Georgia Common Stock, all of which are owned by MAPICS-Mass., and no
shares of MAPICS-Georgia Preferred Stock.
WHEREAS, the respective boards of directors and stockholders of the
Constituent Corporations have approved this Agreement, the Merger and the other
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for the purpose of setting forth
the terms and conditions of the Merger, the method by which the Merger will be
effected, the manner and basis of converting the shares of MAPICS-Mass. Stock
into shares of MAPICS-Georgia Stock, the manner of determining the effective
date of the Merger and such other provisions as are deemed necessary or
desirable, the parties hereto do hereby agree as follows:
ARTICLE I
THE MERGER
1.1 Upon the terms and subject to the conditions of this Agreement
and in accordance with applicable law, at the Effective Time (as defined below)
MAPICS-Mass. shall be merged with and into MAPICS-Georgia and the separate
existence of MAPICS-Mass. shall thereupon cease. MAPICS-Georgia shall be the
surviving corporation in the Merger (hereinafter sometimes referred to as the
"Surviving Corporation"), and the Surviving Corporation shall retain the name
"MAPICS, Inc."
1.2 At the Effective Time, the Surviving Corporation shall thereupon
and thereafter possess all of the rights, privileges, immunities and franchises
of a public and a private nature of each of the Constituent Corporations; all
property, real, personal and mixed, tangible and intangible and all and every
other interest of or due to each of the Constituent Corporations shall be taken
and deemed to be transferred to and vested in the Surviving Corporation without
further action. The title to any real estate, or any interest therein, vested in
any of the Constituent Corporations shall not revert or in any way be impaired
by reason of the Merger. The Surviving Corporation shall thenceforth be
responsible and liable for all the liabilities and obligations of each of the
Constituent Corporations. Neither the rights of creditors nor any liens upon the
property of any of the Constituent Corporations shall be impaired by the Merger.
1.3 The location of the principal and registered office of the
Surviving Corporation is 0000-X Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000.
1.4 The Merger shall be effective as of the date and time specified
in the Certificates of Merger delivered to the Georgia Secretary of State and
the Massachusetts Secretary of State (the "Effective Time").
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ARTICLE II
CERTIFICATE OF INCORPORATION, BYLAWS, DIRECTORS AND
OFFICERS OF THE SURVIVING CORPORATION
2.1 The Articles of Incorporation of MAPICS-Georgia in effect
immediately prior to the Effective Time of the Merger shall be the Articles of
Incorporation of the Surviving Corporation unless and until amended as provided
by law and by such Articles of Incorporation.
2.2 The Bylaws of MAPICS-Georgia in effect immediately prior to the
Effective Time of the Merger shall be the Bylaws of the Surviving Corporation
unless and until amended or repealed as provided by law, by the Articles of
Incorporation of the Surviving Corporation and by such Bylaws.
2.3 The directors of MAPICS-Georgia immediately prior to the
Effective Time of the Merger shall be the directors of the Surviving
Corporation, and the officers of MAPICS-Georgia immediately prior to the
Effective Time of the Merger shall be the officers of the Surviving Corporation,
in both cases until their successors shall have been elected and shall qualify
or until otherwise provided by law, by the Articles of Incorporation of the
Surviving Corporation and by the Bylaws of the Surviving Corporation.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES, OPTIONS
AND WARRANTS OF THE CONSTITUENT CORPORATIONS
3.1 Except as provided in Section 3.5, at the Effective Time, by
virtue of the Merger and without any action by the holder thereof or any action
in addition to that contemplated hereby by either Constituent Corporation:
(a) each then outstanding share of MAPICS-Mass. Common Stock
will be automatically converted into one (1) share of fully-paid and
non-assessable MAPICS-Georgia Common Stock;
(b) each then outstanding share of MAPICS-Mass. Preferred
Stock which has been designated as a particular series thereof will be
automatically converted into one (1) share of fully-paid and non-assessable
MAPICS-Georgia Preferred Stock with such series designation;
(c) each share of MAPICS-Mass. Common Stock then held in the
treasury of MAPICS-Mass. will be automatically converted into one (1) share of
MAPICS-Georgia Common Stock, which share shall be held in the treasury of
MAPICS-Georgia; and
(d) each then outstanding option, warrant, purchase right,
unit or other security of MAPICS-Mass. will be automatically converted into, and
shall be an identical security of, MAPICS-Georgia, exercisable (if at all) at
the same price per share and upon the same terms and conditions immediately
before and immediately after such conversion, and the number of shares of
MAPICS-Georgia Common Stock reserved for issuance upon exercise of
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such options, warrants, purchase rights, units or other securities, as so
converted, shall be equal to the number of shares of MAPICS-Mass. Common Stock
so reserved as of the Effective Time.
3.2 Notwithstanding any other provision of this Agreement, no
certificate or scrip for fractional shares of MAPICS-Georgia Stock shall be
issued in the Merger, and any such fractional interest that may result from the
Merger shall be disregarded and void ab initio.
3.3 Upon and after the Effective Time, all of the outstanding
certificates which immediately prior thereto represented shares of MAPICS-Mass.
Stock or warrants, units or other securities of MAPICS-Mass. shall be deemed for
all purposes to evidence ownership of and to represent the shares of
MAPICS-Georgia Stock or warrants, units or other securities of MAPICS-Georgia,
as the case may be, into which the shares of MAPICS-Mass. Stock or warrants,
units or other securities of MAPICS-Mass. represented by such certificates have
been converted as provided in Section 3.1 and shall be so registered on the
books and records of the Surviving Corporation or its transfer agent. The
registered holder of any such outstanding certificate shall, until such
certificate shall have been surrendered for transfer 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
dividends and other distributions upon, the shares of MAPICS-Georgia Stock or
warrants, units or other securities of MAPICS-Georgia, as the case may be,
evidenced by such outstanding certificate.
3.4 As of the Effective Time, the 100 shares of MAPICS-Georgia
Common Stock issued upon its organization to MAPICS-Mass. shall be canceled and
the consideration paid therefore by MAPICS-Mass. shall be returned by
MAPICS-Georgia to MAPICS-Mass., so that immediately thereafter the then
outstanding shares of MAPICS-Georgia Stock shall consist only of the shares to
be issued by the Surviving Corporation upon the conversion and exchange of
shares of MAPICS-Mass. Stock pursuant to Section 3.1.
3.5 Any outstanding shares of MAPICS-Mass. Stock held by a
stockholder (a "Dissenting Stockholder") who shall have elected to dissent from
the Merger and who shall have exercised and perfected appraisal rights
("Appraisal Rights") with respect to such shares in accordance with Sections 85
through 98 of Chapter 156B of the Massachusetts Business Corporation Law
("MBCL") shall not be converted into shares of MAPICS-Georgia Common Stock as a
result of the Merger. Such Dissenting Stockholder shall be entitled to receive
therefor only the consideration required to be paid to such Dissenting
Stockholder by Sections 85 through 98 of Chapter 156B of the MBCL and, upon the
payment of such consideration, such shares of MAPICS-Mass. Stock shall be
immediately canceled without any further action. Notwithstanding the foregoing
provisions of this Section 3.5, if any such Dissenting Stockholder shall, prior
to the Effective Time, (x) withdraw his election to dissent from the Merger or
(y) fail to properly exercise and perfect his appraisal rights in accordance
with Sections 85 through 98 of Chapter 156B of the MBCL, such Dissenting
Stockholder's shares of MAPICS-Mass. Stock shall be converted, as of the
Effective Time, into shares of MAPICS-Georgia Stock in accordance with Section
3.1.
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ARTICLE IV
BENEFIT PLANS
4.1 Each option or other right to purchase or otherwise acquire
shares of MAPICS-Mass. Common Stock granted under any employee option plan,
employee stock purchase plan or other benefit plan maintained by MAPICS-Mass.
(collectively, the "Plans") which is outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any action by the
holder thereof or any action in addition to that contemplated hereby by either
Constituent Corporation, be converted into and become an option or other right
to purchase or otherwise acquire (and MAPICS-Georgia hereby assumes the
obligation to deliver) the same number of shares of MAPICS-Georgia Common Stock,
at the same price per share and upon the same terms and conditions, as are set
forth in the Plan under which such option or other right was granted (together
with any instruments, agreements or other documents related thereto). The number
of shares of MAPICS-Georgia Common Stock reserved for issuance upon the exercise
of all such options or other rights, converted as described in the preceding
sentence, shall be equal to the number of shares of MAPICS-Mass. Common Stock so
reserved immediately prior to the Effective Time. MAPICS-Georgia hereby assumes,
as of the Effective Time, (a) the Plans and all obligations of MAPICS-Mass.
thereunder, including the outstanding options, stock purchase rights or awards
or portions thereof granted pursuant to the Plans and the right to grant
additional options and stock purchase rights thereunder, and (b) all obligations
of MAPICS-Mass. under all of its other benefit plans in effect immediately prior
to the Effective Time.
ARTICLE V
FURTHER ACTIONS AND AGREEMENTS
5.1 If at any time after the Effective Time of the Merger 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 or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of either Constituent Corporation acquired by the Surviving
Corporation as a result of, or in connection with, the Merger or to otherwise
carry out this Agreement, the officers and directors of the Surviving
Corporation shall, and hereby are authorized to, execute and deliver, in the
name and on behalf of the Constituent Corporations or otherwise, all such deeds,
bills of sale, assignments and assurances and to take and do, in the name and on
behalf of the Constituent Corporations 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, properties or assets in
the Surviving Corporation or to otherwise carry out this Agreement.
5.2 As required by Section 79 of Chapter 156B of the MBCL, the
Surviving Corporation:
(a) agrees that, for so long as required by Section 79 of Chapter 156B
of the MBCL, it may be sued in the Commonwealth of Massachusetts for any
obligation (including the obligation created by Section 85 of Chapter 156B of
the MBCL) of (i) a Constituent Corporation incurred prior to the Effective Time
and (ii) the Surviving Corporation incurred after the Effective Time; and
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(b) irrevocably appoints the Secretary of State of the Commonwealth of
Massachusetts as its agent to accept service of process in any action for the
enforcement of any obligation referred to in clause (a) of this Section 5.2,
including taxes.
ARTICLE VI
MISCELLANEOUS
6.1 For the convenience of the parties hereto and to facilitate the
filing and recording of this Agreement, any number of counterparts hereof may be
executed, and each such counterpart shall be deemed an original instrument and
all of such counterparts shall constitute one document, and the signature of any
party to any counterpart shall be deemed a signature to, and may be appended to,
any other counterpart.
6.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia.
6.3 The parties hereto, by resolution of their respective boards of
directors, may amend, modify or supplement this Agreement, or waive the
application of any provision hereof (including, without limitation, the
condition set forth in Section 6.5), provided that any such amendment,
modification, supplement or waiver is in writing and signed by the parties
hereto.
6.4 By written notice to the other party hereto at any time prior to
the Effective Time, whether before or after approval by the stockholders of
MAPICS-Mass. of this Agreement, the Merger and the other transactions
contemplated hereby for any reason, either MAPICS-Mass. or MAPICS-Georgia, by
resolution of their respective boards of directors, may terminate this Agreement
and abandon the Merger and the other transactions contemplated hereby, and in
that event, neither party shall have any further obligation to the other party
or to the stockholders of the other party.
6.5 Subject to Section 6.3, it is a condition to the consummation of
the Merger and the other transactions contemplated hereby that the aggregate
amounts paid or to be paid to Dissenting Stockholders constitute less than 1% of
the value of the net assets of MAPICS-Mass. as of the date of the Merger
immediately prior to giving effect thereto. Any determination pursuant to this
Section 6.5 shall be made in the sole discretion of the Boards of Directors of
MAPICS-Mass. and MAPICS-Georgia.
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IN WITNESS WHEREOF, each Constituent Corporation has caused this
Agreement to be executed by its duly authorized officers and its corporate seal
to be affixed hereto, as of the date first above written.
[SEAL] MAPICS, INC., a Massachusetts corporation
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Clerk
[SEAL] MAPICS, INC., a Georgia corporation
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
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