EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
BARRA (DE), INC.
(A DELAWARE CORPORATION)
AND
BARRA, INC.
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of August 5, 1998 (this
"Agreement"), is between BARRA (DE), Inc., a Delaware corporation ("BARRA
Delaware"), and BARRA, Inc., a California corporation ("BARRA California"),
BARRA Delaware and BARRA California are sometimes referred to herein as the
"Constituent Corporations."
RECITALS
▇. ▇▇▇▇▇ California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital stock of Fifty
Million (50,000,000) shares. The number of shares of preferred stock authorized
to be issued is Ten Million (10,000,000), no par value. The number of shares of
common stock authorized to be issued is Forty Million (40,000,000), no par value
(the "BARRA California Common Stock").
▇. ▇▇▇▇▇ Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has a total authorized capital stock of
Eighty Five Million (85,000,000) shares. The number of shares of preferred
stock authorized to be issued is Ten Million (10,000,000), par value $.0001
per share. The number of shares of common stock authorized to be issued is
Seventy Five Million (75,000,000), par value $.0001 per share (the "BARRA
Delaware Common Stock").
C. The Board of Directors of BARRA California has determined that, for
the purpose of effecting the reincorporation of BARRA California in the State of
Delaware, it is advisable and in the best interests of BARRA California that
BARRA California merge with and into BARRA Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of BARRA Delaware and BARRA
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective stockholders and executed by the
undersigned officers.
▇. ▇▇▇▇▇ Delaware is a wholly-owned subsidiary of BARRA California.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, BARRA Delaware and BARRA 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 General Corporation Law of the State of
California, BARRA California shall be merged with and into BARRA Delaware (the
"Merger"), the separate existence of BARRA California shall cease and BARRA
Delaware
shall be, and is herein sometimes referred to as, the "Surviving Corporation,"
and the Surviving Corporation shall be renamed BARRA, Inc..
1.2 FILING AND EFFECTIVENESS. The Merger shall not become effective until
the following actions shall be completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the shareholders of BARRA California and the sole stockholder
of BARRA Delaware in accordance with the requirements of the Delaware
General Corporation Law and the General Corporation Law of the State of
California;
(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;
(c) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Delaware General Corporation
Law shall have been filed with the Secretary of State of the State of
Delaware; and
(d) An executed counterpart of this Agreement, together with any
and all other necessary documents and instruments meeting the
requirements of the General Corporation Law of the State of California,
shall have been filed with the Secretary of State of the State of
California.
This Agreement and the Merger shall become effective upon the filing of
an executed Certificate of Merger or an executed counterpart of this Agreement
with the Secretary of State of the State of Delaware (the "Effective Date").
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of BARRA California shall cease and BARRA 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
BARRA California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of BARRA California
in the manner more fully set forth in Section 259 of the General Corporation Law
of the State of Delaware, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of BARRA Delaware as constituted immediately prior
to the Effective Date of the Merger, and (v) shall succeed, without other
transfer, to all of the debts, liabilities and obligations of BARRA California
in the same manner as if BARRA Delaware had itself incurred them, all as more
fully provided under the applicable provisions of the General Corporation Law of
the State of Delaware and the General Corporation Law of the State of
California.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. Except as otherwise provided in
Section 1.1, the Certificate of Incorporation of BARRA 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 BARRA 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. (a) Pursuant to the Certificate of
Incorporation and the Bylaws of the Surviving Corporation, the Board of
Directors of the Surviving Corporation shall consist of six (6) members.
The directors of BARRA California immediately prior to the Effective Date
of the Merger shall become the directors of the Surviving Corporation and such
individuals shall serve as directors of the Surviving Corporation on and
after the Effective Date 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.
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(b) The officers of BARRA California immediately prior to the Effective
Date of the Merger shall become the officers of the Surviving Corporation on and
after the Effective Date 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 BARRA CALIFORNIA COMMON STOCK. Upon the Effective Date of the Merger,
each share of BARRA California Common Stock issued and outstanding immediately
prior thereto shall by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such share or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
BARRA Delaware Common Stock.
3.2 BARRA DELAWARE COMMON STOCK. Upon the Effective Date of the Merger,
each share of BARRA Delaware Common Stock issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any action by BARRA
Delaware, the holder of such shares or any other person, be cancelled and
returned to the status of authorized but unissued shares.
3.3 BARRA CALIFORNIA OPTIONS, WARRANTS AND STOCK PURCHASE RIGHTS.
(a)Upon the Effective Date of the Merger, the Surviving Corporation shall
assume and continue all of BARRA California's stock option and purchase plans in
existence at the Effective Date, including but not limited to the BARRA, Inc.
Stock Option Plan, the BARRA, Inc. 1996 Employee Stock Purchase Plan, the BARRA,
Inc. Directors Option Plan and the 401(k) Employee Savings Plan.
(a) Each outstanding and unexercised option, warrant or other right to
purchase shares of BARRA California Common Stock shall become an option, warrant
or right to purchase the Surviving Corporation's Common Stock on the basis of
one (1) share of BARRA Delaware Common Stock for each share of BARRA California
Common Stock issuable pursuant to any such option, warrant or stock purchase
right on the same terms and conditions and at an exercise price per share equal
to the exercise price per share applicable to any such BARRA California option,
warrant or stock purchase right at the Effective Date of the Merger. A number of
shares of BARRA Delaware Common Stock shall be reserved for issuance upon the
exercise of options, warrants and stock purchase rights equal to the number of
shares of BARRA California Common Stock so reserved immediately prior to the
Effective Date of the Merger.
3.4 EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving
Corporation shall assume all obligations of BARRA California under any and all
employee benefit plans in effect as of the Effective Date with respect to which
employee rights or accrued benefits are outstanding as of such time, including,
but not limited to, the BARRA, Inc. Stock Option Plan, the BARRA, Inc. 1996
Employee Stock Purchase Plan, the BARRA, Inc. Directors Option Plan, the ▇▇▇▇▇▇,
▇▇▇▇▇ & Associates, Inc. 1992 Stock Option Plan and the 401(k) Employee Savings
Plan. 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.
3.5 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of BARRA
California Common Stock may be asked to surrender the same for cancellation to
an exchange agent, whose name will be delivered to such 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 BARRA Delaware Common Stock into which the
surrendered shares were converted as herein provided. Until so surrendered, each
outstanding certificate theretofore representing shares of BARRA California
Common Stock shall be deemed for all purposes to represent the number of shares
of BARRA Delaware Common Stock into which such shares of BARRA California Common
Stock 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
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voting and other rights with respect to and to receive dividends and other
distributions upon the shares of BARRA Delaware Common Stock represented by such
outstanding certificate as provided above.
Each certificate representing BARRA Delaware Common Stock so issued in the
Merger shall bear the same legends, if any, with respect to the restrictions on
transferability as the certificates representing shares of BARRA California
Common Stock so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws, or other such additional legends as agreed upon by the
holder and the Surviving Corporation.
If any certificate for shares of BARRA Delaware Common 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 BARRA Delaware that
such tax has been paid or is not payable.
No action need be taken by holders of BARRA California Common Stock to
exchange their certificates for shares of BARRA Delaware Common Stock; this will
be accomplished at the time of the next transfer by the shareholder.
Certificates for shares of BARRA California Common Stock will automatically
represent an equal number of shares of BARRA Delaware Common Stock upon the
Effective Date of the Merger.
IV. GENERAL
4.1 COVENANTS OF BARRA DELAWARE. BARRA Delaware covenants and agrees that
it will, on or before the Effective Date of the Merger:
4.1.1 Qualify to do business as a foreign corporation in the State
of California and each other jurisdiction in which BARRA California is qualified
to do business in such jurisdiction.
4.1.2 File any and all documents with the California Franchise Tax
Board necessary for the assumption by BARRA Delaware of all of the franchise tax
liabilities of BARRA California.
4.1.3 Take such other actions as may be required by the General
Corporation Law of the State of California.
4.2 FURTHER ASSURANCES. From time to time, as and when required by BARRA
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of BARRA 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 BARRA Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of BARRA California and otherwise to carry out the purposes of this
Agreement, and the officers and directors of BARRA Delaware are fully authorized
in the name and on behalf of BARRA 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 BARRA California or of BARRA
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of BARRA 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 stockholder or shareholders of either Constituent Corporation
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
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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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of
New Castle and the registered agent of the Surviving Corporation at such address
is The Corporation Trust Company.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and copies thereof will be furnished to any
stockholder or shareholder 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
General Corporation Law of the State of California.
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.
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Boards of Directors of BARRA (DE), Inc., a Delaware
corporation, and BARRA, Inc., a California corporation, is hereby executed on
behalf of each of such two corporations and attested by their respective
officers thereunto duly authorized.
BARRA (DE), INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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ATTEST:
▇▇▇▇▇ ▇▇▇▇▇▇
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BARRA, INC.,
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------
ATTEST:
▇▇▇▇▇ ▇▇▇▇▇▇
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[COUNTERPART SIGNATURE PAGE
TO AGREEMENT AND PLAN OF MERGER]
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CERTIFICATE OF APPROVAL OF MERGER
BY OFFICERS OF BARRA, INC.
The undersigned, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, hereby certify that:
1. They are the Chairman of the Board and Secretary, respectively, of
BARRA, Inc., a California corporation (the "Company").
2. This Certificate is attached to the Agreement and Plan of Merger in
the form duly approved by the Board of Directors of the Company and duly
executed on behalf of the Company providing for the merger (the "Merger") of the
Company with and into BARRA (DE), Inc., a Delaware corporation.
3. This corporation has two authorized classes of shares, which are
designated as Common Stock and Preferred Stock. The number of outstanding
shares of each class entitled to vote upon the Merger is 13,077,061 shares of
Common Stock and no shares of Preferred Stock.
4. The terms of the Agreement and Plan of Merger in the form attached to
this Certificate were duly approved by the holders of a majority of the
outstanding shares of Common Stock of the Company, which equaled or exceeded the
vote required. There are no shares of Preferred Stock outstanding.
5. The percentage vote required for such approval was more than 50% of
the outstanding shares of each class of shares.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
5th day of August, 1998 in Berkeley, California. The undersigned further
declare under penalty of perjury under the laws of the State of California
that the matters set forth in this Certificate are true and correct of their
own knowledge.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇, Chairman of the Board
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Secretary
CERTIFICATE OF APPROVAL OF MERGER
BY OFFICERS OF BARRA (DE), INC.
The undersigned, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, hereby certify that:
1. They are the President and Secretary, respectively, of BARRA (DE),
Inc., a Delaware corporation (the "Company").
2. This Certificate is attached to the Agreement and Plan of Merger in
the form duly approved by the Board of Directors of the Company and duly
executed on behalf of the Company providing for the merger (the "Merger") of
BARRA, Inc., a California corporation, with and into the Company.
3. This corporation has two authorized classes of shares, which are
designated as Common Stock and Preferred Stock. The number of outstanding
shares of each class entitled to vote upon the Merger is 100 shares of Common
Stock and no shares of Preferred Stock.
4. The terms of the Agreement and Plan of Merger in the form attached to
this Certificate were duly approved by the holders of 100% of the outstanding
shares of Common Stock of the Company, which equaled or exceeded the vote
required. There are no shares of Preferred Stock outstanding.
5. The percentage vote required for such approval was more than 50% of
the outstanding shares of each class of shares.
IN WITNESS WHEREOF, each of the undersigned has executed this Certificate
this 5th day of August, 1998 in Berkeley, California. The undersigned further
declare under penalty of perjury under the laws of the State of California that
the matters set forth in this Certificate are true and correct of their own
knowledge.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Secretary
CERTIFICATE OF MERGER
MERGING
BARRA, INC.
WITH AND INTO
BARRA (DE), INC.
It is hereby certified that:
1. The constituent business corporations participating in the merger
herein certified are:
(i) BARRA, Inc. ("BARRA California"), which is incorporated under the
laws of the State of California; and
(ii) BARRA (DE), Inc. ("BARRA Delaware"), which is incorporated under
the laws of the State of Delaware.
2. An Agreement and Plan of Merger has been approved, adopted, certified,
executed and acknowledged by each of the aforesaid constituent corporations in
accordance with the provisions of subsection (c) of Section 252 of the General
Corporation Law of the Sate of Delaware, to wit by BARRA California in
accordance with the laws of the State of California and by BARRA Delaware in the
same manner as provided in Section 251 of the General Corporation Law of the
State of Delaware.
3. The name of the surviving corporation in the merger herein certified
is BARRA (DE), Inc., which will continue its existence as said surviving
corporation under the name BARRA, Inc. upon the effective date of said merger
pursuant to the provisions of the General Corporation Law of the State of
Delaware.
4. The Certificate of Incorporation of BARRA (DE), Inc. is to be amended
and changed by reason of the merger herein certified by striking out article I
thereof, relating to the name of said surviving corporation, and by substituting
in lieu thereof the following article:
" I
The name of this corporation is BARRA, Inc. (the "Corporation")."
and said Certificate of Incorporation as so amended and changed shall continue
to be the Certificate of Incorporation of said surviving corporation until
further amended and changed in accordance with the provisions of the General
Corporation Law of the State of Delaware.
5. The executed Agreement and Plan of Merger between the aforesaid
constituent corporations is on file at the principal place of business of the
aforesaid surviving corporation, the address of which is as follows:
BARRA, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
6. A copy of the aforesaid Agreement and Plan of Merger will be furnished
by the aforesaid surviving corporation, on request and without cost, to any
stockholder of any of the aforesaid constituent corporations.
7. The authorized capital stock of BARRA California consists of
40,000,000 shares of Common Stock without par value and 10,000,000 shares of
Preferred Stock without par value.
8. The merger herein certified shall become effective upon the filing of
this Certificate of Merger with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, BARRA (DE), Inc. has caused this Certificate of Merger
to be executed in its corporate name this 14th day of August, 1998.
BARRA (DE), INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
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Title: Chief Executive Officer and President
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