EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF SCIENT CORPORATION,
A DELAWARE CORPORATION
AND
SCIENT CORPORATION,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of April ___, 1999, (the
"Agreement"), is between Scient Corporation, a Delaware corporation ("Scient-
Delaware") and Scient Corporation, a California corporation ("Scient-
California"). Scient-Delaware and Scient-California are sometimes referred to
herein as the "Constituent Corporations."
R E C I T A L S
- - - - - - - -
A. Scient-Delaware is a corporation duly organized and existing
under the laws of the State of Delaware and has an authorized capital stock of
51,500,000 shares, 40,000,000 of which are designated "Common Stock," and
11,500,000 of which are designated "Preferred Stock." Of such authorized
shares of Preferred Stock, 6,283,334 shares are designated as Series A
Preferred Stock, 2,240,477 shares are designated as Series B Preferred Stock
and 1,382,488 shares are designated Series C Preferred Stock. As of the date
of this Agreement, 1,000 shares of Common Stock of Scient-Delaware are issued
and outstanding, all of which are held by Scient-California and no shares of
Preferred Stock of Scient-Delaware are issued and outstanding.
B. Scient-California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital stock of
51,500,000 shares, 40,000,000 of which are designated "Common Stock," and
11,500,000 of which are designated "Preferred Stock." Of such authorized shares
of Preferred Stock, 6,283,334 shares are designated as Series A Preferred Stock,
2,240,477 shares are designated as Series B Preferred Stock and 1,382,488 shares
are designated Series C Preferred Stock. As of March 25, 1999, the record date
for determining shareholders of Scient-California entitled to vote on this
Agreement, 16,576,866 shares of Common Stock, 6,283,334 shares of Series A
Preferred Stock, 2,240,477 shares of Series B Preferred Stock and 1,050,649
shares of Series C Preferred Stock were issued and outstanding.
C. The Board of Directors of Scient-California has determined that,
for the purpose of effecting the reincorporation of Scient-California in the
State of Delaware, it is advisable and in the best interests of Scient-
California that Scient-California merge with and into Scient-Delaware upon the
terms and conditions herein provided.
D. The respective Boards of Directors of Scient-Delaware and Scient-
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective sole stockholder and shareholders, and
executed by the undersigned officers.
E. Scient-Delaware is a wholly owned subsidiary of Scient-California.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Scient-Delaware and Scient-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
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Delaware General Corporation Law and the California Corporations Code, Scient-
California shall be merged with and into Scient-Delaware (the "Merger"), the
separate existence of Scient-California shall cease and Scient-Delaware shall
be, and is herein sometimes referred to as, the "Surviving Corporation," and
the name of the Surviving Corporation shall be "Scient Corporation."
1.2 Filing and Effectiveness. The Merger shall become effective when the
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following actions shall have been completed:
A. This Agreement and the Merger shall have been adopted and approved by
the shareholders of Scient-California and the sole stockholder of Scient-
Delaware in accordance with the requirements of the California Corporations
Code and the Delaware 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 Ownership and 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.
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
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separate existence of Scient-California shall cease and Scient-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 Scient-California's Board of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of Scient-
California, including all shares of any subsidiary held by Scient-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 its debts,
liabilities and obligations 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 Scient-California in the same manner
as if Scient-Delaware had itself incurred them, all as more fully provided
under the applicable provisions of the Delaware General Corporation Law and
the California Corporations Code.
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II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Amended and Restated Certificate of
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Incorporation of Scient-Delaware as in effect immediately prior to the Effective
Date of the Merger shall continue in full force and effect as the Amended and
Restated 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 Scient-Delaware as in effect immediately prior
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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 Scient-Delaware
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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 Amended
and Restated Certificate of Incorporation of the Surviving Corporation or the
Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 Scient-California Common Shares. Upon the Effective Date of the
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Merger, each share of Scient-California Common Stock issued and outstanding
immediately prior to the Merger shall, by virtue of the Merger and without any
action by the Constituent Corporations, the holder of such shares or any other
person, be converted into and exchanged for one (1) fully paid and
nonassessable share of Common Stock, par value $0.0001 per share, of the
Surviving Corporation. No fractional share interests of the Surviving
Corporation's Common Stock shall be issued but shall, instead, be paid in cash
or check by Scient-Delaware to the holder of such shares in that amount equal
to the fair market value of such fractional shares.
3.2 Scient-California Preferred Shares. Upon the Effective Date of the
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Merger each share of Series A Preferred Stock of Scient-California issued and
outstanding immediately prior to the Merger shall, by virtue of the Merger and
without any action by the Constituent Corporations, the holder of such shares or
any other person, be converted into or exchanged for one (1) fully paid and
nonassessable share of Series A Preferred Stock of the Surviving Corporation,
par value $0.0001 per share. The rights, preferences and privileges of the
Series A Preferred Stock of the Surviving Corporation are as set forth in the
Amended and Restated Certificate of Incorporation of the Surviving Corporation.
No fractional share interests of the Surviving Corporation's Preferred Stock
shall be issued but shall, instead, be paid in cash or check by Scient-Delaware
to the holder of such shares in that amount equal to the fair market value of
such fractional shares.
Upon the Effective Date of the Merger each share of Series B Preferred
Stock of Scient-California issued and outstanding immediately prior to the
Merger shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any
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other person, be converted into or exchanged for one (1) fully paid and
nonassessable share of Series B Preferred Stock of the Surviving Corporation,
par value $0.0001 per share. The rights, preferences and privileges of the
Series B Preferred Stock of the Surviving Corporation are as set forth in the
Amended and Restated Certificate of Incorporation of the Surviving
Corporation. No fractional share interests of the Surviving Corporation's
Preferred Stock shall be issued but shall, instead, be paid in cash or check
by Scient-Delaware to the holder of such shares in that amount equal to the
fair market value of such fractional shares.
Upon the Effective Date of the Merger each share of Series C Preferred
Stock of Scient-California issued and outstanding immediately prior to the
Merger shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be converted into
or exchanged for one (1) fully paid and nonassessable share of Series C
Preferred Stock of the Surviving Corporation, par value $0.0001 per share. The
rights, preferences and privileges of the Series C Preferred Stock of the
Surviving Corporation are as set forth in the Amended and Restated Certificate
of Incorporation of the Surviving Corporation. No fractional share interests of
the Surviving Corporation's Preferred Stock shall be issued but shall, instead,
be paid in cash or check by Scient-Delaware to the holder of such shares in that
amount equal to the fair market value of such fractional shares.
3.3 Scient-California Warrants to Purchase Common Stock. Upon the
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Effective Date of the Merger each warrant to purchase one (1) share of Common
Stock of Scient-California issued and outstanding immediately prior to the
Merger ("Common Warrant"), shall, by virtue of the Merger and without any
action by the Constituent Corporations, the holder of such Warrant or any
other person, be converted into a warrant to purchase one (1) share of Common
Stock of the Surviving Corporation, par value $0.0001 per share ("New Common
Warrant"); provided, however, that no New Common Warrant shall be exercisable
for fractional shares of the Surviving Corporation's Common Stock, but instead
shall be rounded-down to and exercisable for the nearest whole number of
shares of the Surviving Corporation's Common Stock. The per share exercise
price of each of the New Common Warrant shall be the same as the original
Common Warrant.
3.4 Scient-California 1997 Stock Plan.
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(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume the obligations of Scient-California under its 1997 Stock Plan
(the "1997 Plan"). Each outstanding and unexercised option to purchase one (1)
share of Common Stock of Scient-California (an "Option") under the 1997 Plan
shall be converted into, subject to the provisions in paragraph (b) of this
Section 3.4, an option to purchase one (1) share of the Surviving
Corporation's Common Stock (a "New Option") on the same terms as described
above.
(b) Following the Effective Date of the Merger, the number of shares
of the Surviving Corporation's Common Stock to which an Option holder would be
otherwise entitled upon exercise of an assumed Option shall be rounded down to
the nearest whole number. In addition, no "additional benefits" (within the
meaning of Section 424(a)(2) of the Internal
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Revenue Code of 1986, as amended) shall be accorded to the optionees pursuant
to the assumption of their options.
3.5 Scient-Delaware Common Stock. Upon the Effective Date of the Merger,
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each share of Common Stock, par value $0.0001 per share, of Scient-Delaware
issued and outstanding immediately prior thereto shall, by virtue of the
Merger and without any action by Scient-Delaware, the holder of such shares or
any other person, be canceled and returned to the status of authorized but
unissued shares.
3.6 Exchange of Certificates. After the Effective Date of the Merger, each
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holder of an outstanding certificate representing shares of Scient-California
Common Stock or Preferred Stock 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, as the case may be, into which the surrendered shares were
converted as herein provided. Until so surrendered, each outstanding
certificate theretofore representing shares of Scient-California Common Stock or
Preferred Stock shall be deemed for all purposes to represent the number of
shares of the Surviving Corporation's Common Stock or Preferred Stock,
respectively, into which such shares of Scient-California Common Stock or
Preferred Stock, as the case may be, 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 represented by such outstanding
certificate as provided above.
Each certificate representing Common Stock or Preferred Stock of the
Surviving Corporation so issued in the Merger shall bear the same legends, if
any, with respect to the restrictions on transferability as the certificates of
Scient-California 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 Scient-Delaware 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 Scient-Delaware that
such tax has been paid or is not payable.
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IV. GENERAL
4.1 Covenants of Scient-Delaware. Scient-Delaware covenants and agrees
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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 Corporations Code.
(b) File any and all documents with the California Franchise Tax Board
necessary for the assumption by Scient-Delaware of all of the franchise tax
liabilities of Scient-California.
(c) Take such other actions as may be required by the California
Corporations Code.
4.2 Further Assurances. From time to time, as and when required by Scient-
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Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of Scient-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 Scient-Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Scient-California and otherwise to carry out the purposes of this
Agreement, and the officers and directors of Scient-Delaware are fully
authorized in the name and on behalf of Scient-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
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Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Scient-California or of Scient-
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of Scient-California.
4.4 Amendment. The Boards of Directors of the Constituent Corporations may
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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 stockholders 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 Amended and Restated 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.
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4.5 Registered Office. The registered office of the Surviving
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Corporation in the State of Delaware is ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ and Incorporating Services, Inc. is the registered agent of the
Surviving Corporation at such address.
4.6 Agreement. Executed copies of this Agreement will be on file at the
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principal place of business of the Surviving Corporation at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and copies thereof will be
furnished to any stockholder of either Constituent Corporation, upon request and
without cost.
4.7 Governing Law. This Agreement shall in all respects be construed,
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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 Corporations Code.
4.8 Counterparts. In order to facilitate the filing and recording of this
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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 Board of Directors of Scient-Delaware and Scient-California
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
SCIENT CORPORATION,
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief Executive Officer
ATTEST:
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Assistant Secretary
SCIENT CORPORATION,
a California corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief Executive Officer
ATTEST:
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Assistant Secretary
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