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EXHIBIT 3.3
AGREEMENT AND PLAN OF MERGER
OF ANSYS DIAGNOSTICS, INC.,
A DELAWARE CORPORATION,
AND
ANSYS DIAGNOSTICS, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of May 22, 1999, (the
"AGREEMENT") is entered into by and between ANSYS Diagnostics, Inc., a Delaware
corporation ("ANSYS-DELAWARE" or the "SURVIVING CORPORATION"), and ANSYS
Diagnostics, Inc., a California corporation ("ANSYS-CALIFORNIA"). ANSYS-Delaware
and ANSYS-California are sometimes referred to herein as the "CONSTITUENT
CORPORATIONS."
R E C I T A L S
A. ANSYS-Delaware is a corporation duly organized and existing
under the laws of the State of Delaware and has authorized capital stock of
35,000,000 shares, 30,000,000 of which are designated "Common Stock," par value
$.0001 per share, and 5,000,000 of which are designated "Preferred Stock," par
value $.0001 per share. Four Thousand (4,000) shares are designated Series A
Redeemable Preferred Stock and Fourteen Thousand (14,000) shares are designated
Series B Convertible Preferred Stock. As of the date hereof, 1,000 shares of
Common Stock are issued and outstanding, all of which are held by
ANSYS-California. No shares of Preferred Stock are outstanding.
B. ANSYS-California is a corporation duly organized and existing
under the laws of the State of California and has authorized capital stock of
35,000,000 shares, 30,000,000 of which are designated "Common Stock," no par
value, and 5,000,000 of which are designated, "Preferred Stock," no par value.
As of the date hereof, 5,558,472 shares of Common Stock are issued and
outstanding and 956,620 shares of Common Stock are subject to issuance upon
exercise of outstanding stock options. As of the date hereof, 18,000 shares of
Preferred Stock are issued and outstanding, of which 4,000 shares are Series A
Redeemable Preferred Stock and 14,000 shares are Series B Convertible Preferred
Stock.
C. The Board of Directors of ANSYS-California has determined
that, for the purpose of effecting the reincorporation of ANSYS-California in
the State of Delaware, it is advisable and in the best interests of
ANSYS-California that ANSYS-California merge with and into ANSYS-Delaware upon
the terms and conditions herein provided, with ANSYS-Delaware as the surviving
corporation.
D. The respective Boards of Directors of ANSYS-Delaware and
ANSYS-California have approved this Agreement and have directed that this
Agreement be submitted to a vote of the sole stockholder of ANSYS-Delaware and
shareholders of ANSYS-California, respectively, and be executed by the
undersigned officers.
E. ANSYS-Delaware is a wholly-owned subsidiary of
ANSYS-California.
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NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, ANSYS-Delaware and ANSYS-California hereby agree,
subject to the terms and conditions hereinafter set forth, as follows:
I. MERGER
1.1 Merger. In accordance with the provisions of this Agreement,
the Delaware General Corporation Law and the California General Corporation Law,
ANSYS-California shall be merged with and into ANSYS-Delaware (the "MERGER"). By
virtue of the Merger, the separate existence of ANSYS-California shall cease and
ANSYS-Delaware shall continue as the surviving corporation under the name "ANSYS
Diagnostics, Inc."
1.2 Filing and Effectiveness. The Merger shall become effective
when the following actions shall have been completed:
(a) This Agreement and the Merger shall have been
adopted and approved by the shareholders of ANSYS-California in accordance with
the requirements of the Delaware General Corporation Law and the California
General Corporation Law;
(b) All of the conditions precedent to the consummation
of the Merger specified in this Agreement shall have been satisfied or duly
waived by the party entitled to satisfaction thereof; and
(c) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the Delaware General
Corporation Law and California General Corporation Law shall have been filed
with the Secretary of State of the State of Delaware.
The date and time when the Merger shall become effective, as
aforesaid, is herein called the "EFFECTIVE DATE OF THE MERGER."
1.3 Effect of the Merger. Upon the Effective Date of the Merger,
the separate existence of ANSYS-California shall cease and ANSYS-Delaware, as
the Surviving Corporation, (i) shall continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the Effective
Date of the Merger, (ii) shall be subject to all actions previously taken by its
and ANSYS-California's Board of Directors, (iii) shall succeed, without other
transfer or action on the part of any other party, to all of the assets, rights,
powers and property of ANSYS-California in the manner more fully set forth in
Section 259 of the Delaware General Corporation Law, (iv) shall continue to be
subject to all of the debts, liabilities and obligations of ANSYS-Delaware as
constituted immediately prior to the Effective Date of the Merger, and (v) shall
succeed, without other transfer or other action on the part of any other party,
to all of the debts, liabilities and obligations of ANSYS-California in the same
manner as if ANSYS-Delaware had itself incurred them, all as more fully provided
under the applicable provisions of the Delaware General Corporation Law and the
California General Corporation Law.
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II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of
Incorporation of ANSYS-Delaware as in effect immediately prior to the Effective
Date of the Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of ANSYS-Delaware as in effect immediately
prior to the Effective Date of the Merger shall continue in full force and
effect as the Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of
ANSYS-California immediately prior to the Effective Date of the Merger shall be
the directors and officers of the Surviving Corporation until their successors
shall have been duly elected and qualified or until as otherwise provided by
law, the Certificate of Incorporation of the Surviving Corporation or the Bylaws
of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 Conversion of ANSYS-California Capital Stock. Subject to the
terms and conditions of this Agreement, upon the Effective Date of the Merger,
by virtue of the Merger and without any action on the part of the Constituent
Corporations or the holders of the capital stock thereof:
(a) Each share of Common Stock, no par value, of ANSYS-California
issued and outstanding immediately prior to the Effective Date of the Merger
shall be converted into and exchanged for one (1) fully paid and nonassessable
share of Common Stock, par value $.0001 per share, of the Surviving Corporation;
(b) Each share of Series A Redeemable Preferred Stock, no par
value, of ANSYS-California issued and outstanding immediately prior to the
Effective Date of the Merger shall be converted into and exchanged for one (1)
fully paid and nonassessable share of Series A Redeemable Preferred Stock, par
value $.0001 per share, of the Surviving Corporation; and
(c) Each share of Series B Convertible Preferred Stock, no par
value, of ANSYS-California issued and outstanding immediately prior to the
Effective Date of the Merger shall be converted into and exchanged for one (1)
fully paid and nonassessable share of Series B Convertible Preferred Stock, par
value $.0001 per share, of the Surviving Corporation;
3.2 ANSYS-California Stock Options.
(a) Upon the Effective Date of the Merger, each option
to purchase shares of Common Stock of ANSYS-California (an "OPTION"), whether
vested or unvested, outstanding and unexercised immediately prior to the
Effective Date of the Merger shall be assumed by the Surviving Corporation and
shall be converted, subject to the provisions in paragraph 3.3(b) below, on the
basis of one (1) share of the Surviving Corporation's Common Stock for each
share of ANSYS-California Common Stock issuable pursuant to any such Option,
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into an option to purchase the Surviving Corporation's Common Stock on the same
terms and conditions set forth in such Option. The Surviving Corporation shall
also assume all of the rights and obligations of ANSYS-California under its 1990
Stock Option Plan (the "1990 Plan") and its 1997 Stock Incentive Plan (the "1997
PLAN"). The 1990 Plan and 1997 Plan are sometimes collectively referred to
herein as the "PLAN."
(b) One (1) share of the Surviving Corporation's Common
Stock shall be reserved for issuance (i) under the Plan for each share of Common
Stock of ANSYS-California so reserved immediately prior to the Effective Date of
the Merger and (ii) upon the exercise of any Option issued outside of the Plan
for each share of Common Stock of ANSYS-California so reserved immediately prior
to the Effective Date of the Merger.
(c) Following the Effective Date of the Merger, no
"additional benefits" (within the meaning of Section 424(a)(2) of the Internal
Revenue Code of 1986, as amended) shall be accorded to the optionees pursuant to
the assumption of their options.
3.3 ANSYS-Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, par value $.0001 per share, of
ANSYS-Delaware issued and outstanding immediately prior thereto shall, by virtue
of the Merger and without any action by ANSYS-Delaware, the holder of such
shares or any other person, be cancelled and returned to the status of
authorized but unissued shares.
3.4 Exchange of Certificates. After the Effective Date of the
Merger, each holder of an outstanding certificate representing shares of Common
Stock or Preferred Stock of ANSYS-California may be asked to surrender the same
for cancellation to an exchange agent, whose name will be delivered to holders
prior to any requested exchange (the "EXCHANGE AGENT"), and each such holder
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Surviving Corporation's Common Stock or
Preferred Stock into which the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate theretofore
representing shares of Common Stock or Preferred Stock of ANSYS-California shall
be deemed for all purposes to represent the number of shares of the Surviving
Corporation's Common Stock or Preferred Stock, as the case may be, into which
such shares of Common Stock or Preferred Stock of ANSYS-California were
converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise any voting and other rights with respect to, and to
receive dividends and other distributions upon, the shares of Common Stock or
Preferred Stock of the Surviving Corporation, as the case may be, represented by
such outstanding certificate as provided above.
Each certificate representing Common Stock or Preferred Stock of
the Surviving Corporation issued in the Merger shall bear the same legends, if
any, with respect to the restrictions on transferability as the certificates of
ANSYS-California so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of the Surviving
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Corporation in compliance with applicable laws, or such other additional legends
as agreed upon by the holder and the Surviving Corporation.
If any certificate for shares of the Surviving Corporation's
stock is to be issued in a name other than that in which the certificate
surrendered in exchange therefor is registered, it shall be a condition of
issuance thereof that the certificate so surrendered shall be properly endorsed
and otherwise in proper form for transfer, that such transfer otherwise be
proper and comply with applicable securities laws and that the person requesting
such transfer pay to the Exchange Agent any transfer or other taxes payable by
reason of issuance of such new certificate in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of the Surviving Corporation that such tax has been paid or is not
payable.
IV. GENERAL
4.1 Covenants of ANSYS-Delaware. ANSYS-Delaware covenants and
agrees that it will, on or before the Effective Date of the Merger:
(a) Qualify to do business as a foreign corporation in
the State of California and in connection therewith irrevocably appoint an agent
for service of process as required under the provisions of Section 2105 of the
California General Corporation Law.
(b) File any and all documents with the California
Franchise Tax Board necessary for the assumption by ANSYS-Delaware of all of the
franchise tax liabilities of ANSYS-California.
(c) Take such other actions as may be required by the
California General Corporation Law to effect the Merger.
4.2 Further Assurances. From time to time, as and when required
by ANSYS-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of ANSYS-California such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other actions
as shall be appropriate or necessary in order to vest or perfect in or conform
of record or otherwise by ANSYS-Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of ANSYS-California and otherwise to carry out the purposes of
this Agreement, and the officers and directors of ANSYS-Delaware are fully
authorized in the name and on behalf of ANSYS-California or otherwise to take
any and all such action and to execute and deliver any and all such deeds and
other instruments.
4.3 Abandonment. At any time before the Effective Date of the
Merger, this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either ANSYS-California or of
ANSYS-Delaware, or of both, notwithstanding the approval of this Agreement by
the shareholders of ANSYS-California.
4.4 Amendment. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement (or certificate in lieu thereof) with the Secretary of State of the
State of Delaware; provided, that an amendment made subsequent to the adoption
of this Agreement by the shareholders of ANSYS-California or sole
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stockholder of ANSYS-Delaware shall not: (1) alter or change the amount or kind
of shares, securities, cash, property and/or rights to be received in exchange
for or on conversion of all or any of the shares of any class or series thereof
of such Constituent Corporation, (2) alter or change any term of the Certificate
of Incorporation of the Surviving Corporation to be effected by the Merger, or
(3) 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 capital stock of any Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is 0 Xxxx Xxxxxxxxxx Xxxxxx, in the City of
Dover, County of Kent. The registered agent of the Surviving Corporation at such
address is National Registered Agents, Inc.
4.6 Agreement. Executed copies of this Agreement will be on file
at the principal place of business of the Surviving Corporation at 00000
Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, and copies thereof will be
furnished to any shareholder or stockholder of either Constituent Corporation,
upon request and without cost.
4.7 Governing Law. This Agreement shall in all respects be
construed, interpreted and enforced in accordance with and governed by the laws
of the State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4.8 Counterparts. In order to facilitate the filing and recording
of this Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
4.9 Approval of ANSYS-California as Sole Stockholder of
ANSYS-Delaware. By its execution and delivery of this Agreement,
ANSYS-California, as sole stockholder of ANSYS-Delaware, consents to, approves
and adopts this Agreement and approves the Merger. ANSYS-California agrees to
execute such further instruments as may be necessary or desirable to evidence
its approval and adoption of this Agreement and the Merger as the sole
stockholder of ANSYS-Delaware.
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IN WITNESS WHEREOF, this Agreement having first been approved by
the resolutions of the Board of Directors of ANSYS Diagnostics, Inc., a Delaware
corporation, and ANSYS Diagnostics, Inc., a California corporation, is hereby
executed on behalf of each of such corporations and attested by their respective
officers thereunto duly authorized.
Dated: May 22, 1999 ANSYS DIAGNOSTICS, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx, President
ATTEST:
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx, Secretary
ANSYS DIAGNOSTICS, INC.,
a California corporation
By: /s/ XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx, President
ATTEST:
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx, Secretary
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