Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF ACTIVE SOFTWARE, INC.
A DELAWARE CORPORATION,
and
OF ACTIVE SOFTWARE, INC.
A CALIFORNIA CORPORATION
This Agreement and Plan of Merger dated as of July ____, 1999 (the
"Agreement") is between Active Software, Inc., a California corporation ("Active
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California"), and Active Software, Inc., a Delaware corporation ("Active
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Delaware"). Active Delaware and Active California are sometimes referred to in
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this Agreement as the "Constituent Corporations."
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RECITALS
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A. Active Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 113,405,400
shares, 100,000,000 of which are designated "Common Stock," $0.001 par value,
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and 13,405,400 of which are designated "Preferred Stock," $0.001 par value, of
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which 6,022,500 shares are designated as Series A Preferred Stock, none of which
are issued and outstanding, 3,915,000 of which are designated Series B Preferred
Stock, none of which are issued and outstanding, and 3,468,000 of which are
designated as Series C Preferred Stock, none of which are issued and
outstanding. As of July __, 1999, 100 shares of Active Delaware Common Stock
were issued and outstanding, all of which are held by Active California, and no
shares of Preferred Stock were issued and outstanding.
B. Active California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 28,937,000
shares, 20,000,000 of which are designated "Common Stock," $0.001 par value, of
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which ________ shares are issued and outstanding, and 8,937,000 of which are
designated "Preferred Stock," $0.001 par value, of which 4,015,000 shares are
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designated as Series A Preferred Stock (the "Series A Preferred Stock"),
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___________ of which are issued and outstanding, 2,610,000 of which are
designated Series B Preferred Stock (the "Series B Preferred Stock"), ________
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of which are issued and outstanding, and 2,312,000 of which are designated as
Series C Preferred Stock (the "Series C Preferred Stock"), ___________ of which
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are issued and outstanding. The number of shares outstanding is as of July __,
1999.
C. The Board of Directors of Active California has determined that, for
the purpose of effecting the reincorporation of Active California in the State
of Delaware, it is advisable and in the best interests of Active California that
Active California merge with and into Active Delaware upon the terms and
conditions provided in this Agreement.
D. The respective Boards of Directors of Active Delaware and Active
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.
AGREEMENT
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In consideration of the mutual agreements and covenants set forth herein,
Active Delaware and Active California hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
1. Merger.
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1.1 Merger. In accordance with the provisions of this Agreement, the
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Delaware General Corporation Law and the California General Corporation Law,
Active California shall be merged with and into Active Delaware (the "Merger"),
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the separate existence of Active California shall cease and Active Delaware
shall be, and is sometimes referred to below as, the "Surviving Corporation,"
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and the name of the Surviving Corporation shall be Active Software, Inc.
1.2 Filing and Effectiveness. The Merger shall become effective upon
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completion of the following actions:
(a) Adoption and approval of this Agreement and the Merger by
the stockholders of each Constituent Corporation in accordance with the
applicable requirements of the Delaware General Corporation Law and the
California General Corporation Law;
(b) The satisfaction or waiver of all of the conditions
precedent to the consummation of the Merger as specified in this Agreement; and
(c) The filing with the Secretary of State of Delaware of an
executed Certificate of Merger or an executed counterpart of this Agreement
meeting the requirements of the Delaware General Corporation Law.
The date and time when the Merger becomes effective is referred to in this
Agreement as the "Effective Date of the Merger."
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1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
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separate existence of Active California shall cease and Active Delaware, as the
Surviving Corporation, (a) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (b) shall be subject to all actions previously taken by its and
Active California's Board of Directors, (c) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Active California
in the manner more fully set forth in Section 259 of the Delaware General
Corporation Law, (d) shall continue to be subject to all of the debts,
liabilities and obligations of Active Delaware as constituted immediately prior
to the Effective Date of the Merger, and (e) shall succeed, without other
transfer, to all of the debts, liabilities and obligations of Active California
in the same manner as if Active 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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2. Charter Documents, Directors and Officers
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2.1 Certificate of Incorporation. The Certificate of Incorporation of
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Active 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 Active 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 Active
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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 as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
3. Manner of Conversion of Stock
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3.1 Active California Common Stock. Upon the Effective Date of the
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Merger, each one share of Active 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 fully paid and nonassessable share of
Common Stock, $0.001 par value, of the Surviving Corporation. No fractional
share interests of the Surviving Corporation shall be issued. Any fractional
share interests to which a holder would otherwise be entitled shall be
aggregated so that no Active California shareholder shall receive cash in an
amount greater than the value of one (1) full share of Active Delaware Common
Stock.
3.2 Active California Preferred Stock. Upon the Effective Date of the
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Merger, each share of Active California Series A Preferred, Series B Preferred,
and Series C Preferred issued and outstanding immediately prior thereto, which
shares are convertible into such number of shares of Active California Common
Stock as set forth in the Active California Articles of Incorporation, as
amended, 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 fully paid and non-assessable share of
Series A Preferred, Series B Preferred, or Series C Preferred, as the case may
be, of the Surviving Corporation, $0.001 par value, respectively, having such
rights, preferences and privileges as set forth in the Certification of
Incorporation of the Surviving Corporation, which shares of Preferred Stock
shall be convertible into the same number of shares of the Surviving
Corporation's Common Stock, $0.001 par value as such share of Active California
Preferred Stock was convertible into shares of Active California common stock
immediately prior to the Effective Date of the Merger, subject to adjustment
pursuant to the terms of the Certificate of Incorporation of the Surviving
Corporation.
3.3 Active California Options, Stock Purchase Rights and Convertible
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Securities.
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(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume the obligations of Active California under Active California's
Amended and Restated Rights Agreement, as amended (the "Rights Agreement"), 1996
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Stock Plan, 1996A Stock Plan and all other employee benefit plans of Active
California. Each outstanding and unexercised option, other right to purchase,
or security convertible into, Active California Common Stock or Preferred Stock
(a "Right") shall become, subject to the provisions in paragraph (c) hereof, an
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option, right to purchase, or a security convertible into the Surviving
Corporation's Common Stock or Preferred Stock, respectively, on the basis of one
share of the Surviving Corporation's Common Stock or Preferred Stock, as the
case may be, for each one share of Active California Common Stock or Preferred
Stock, issuable pursuant to any such Right, on the same terms and conditions and
at an exercise price equal to the exercise price applicable to any such Active
California Right at the Effective Date of the Merger. This paragraph 3.3(a)
shall not apply to Active California Common Stock or Preferred Stock. Such
Common Stock and Preferred Stock are subject to paragraph 3.1 and 3.2 hereof,
respectively.
(b) A number of shares of the Surviving Corporation's Common Stock
and Preferred Stock shall be reserved for issuance upon the exercise or
conversion of Rights equal to the number of shares of Active California Common
Stock and Preferred Stock so reserved immediately prior to the Effective Date of
the Merger.
(c) The assumed Rights shall not entitle any holder thereof to a
fractional share upon exercise or conversion. In lieu thereof, any fractional
share interests to which a holder of an assumed Right (other than an option
issued pursuant to Active California 1996 Stock Plan and 1996A Stock Plan) would
otherwise be entitled upon exercise or conversion shall be aggregated (but only
with other similar Rights which have the same per share terms). To the extent
that after such aggregation, the holder would still be entitled to a fractional
share with respect thereto upon exercise or conversion, the holder shall be
entitled upon the exercise or conversion of all such assumed Rights pursuant to
their terms (as modified herein), to one full share of Common Stock or Preferred
Stock in lieu of such fractional share. With respect to each class of such
similar Rights, no holder will be entitled to more than one full share in lieu
of a fractional share upon exercise or conversion.
Notwithstanding the foregoing, with respect to options issued under the
Active California 1996 Stock Plan and 1996A Stock Plan that are assumed in the
Merger, the number of shares of Common Stock to which the holder would be
otherwise entitled upon exercise of each such assumed option following the
Merger shall be rounded down to the nearest whole number and the exercise price
shall be rounded up to the nearest whole cent. In addition, 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.
3.4 Active Delaware Common Stock. Upon the Effective Date of the Merger,
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each share of Common Stock, $0.001 par value, of Active Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by Active Delaware, the holder of such shares or any other person, be
canceled and returned to the status of authorized but unissued shares.
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3.5 Exchange of Certificates. After the Effective Date of the Merger,
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each holder of an outstanding certificate representing shares of Active
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
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shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the appropriate class and series of the
Surviving Corporation's capital stock into which the surrendered shares were
converted as herein provided. Until so surrendered, each outstanding
certificate theretofore representing shares of Active California capital stock
shall be deemed for all purposes to represent the number of whole shares of the
appropriate class and series of the Surviving Corporation's capital stock into
which such shares of Active California capital 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 voting and other rights with respect to and to receive
dividends and other distributions upon the shares of capital stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing capital 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 Active California so
converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws.
If any certificate for shares of 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 the 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.
4. General
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4.1 Covenants of Active Delaware. Active 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 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 Active Delaware of all of the franchise
tax liabilities of Active California; and
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(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 Active
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Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of Active 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 Active Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Active California and otherwise to carry out the purposes of this
Agreement, and the officers and directors of Active Delaware are fully
authorized in the name and on behalf of Active 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,
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this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Active California or Active
Delaware, or both, notwithstanding the approval of this Agreement by the
shareholders of Active California or by the sole stockholder of Active Delaware,
or by both.
4.4 Amendment. The Boards of Directors of the Constituent Corporations
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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 stockholders of either Constituent Corporation shall not: (a)
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, (b) alter
or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger, or (c) 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 of shares or series of capital stock
of such Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving Corporation
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in the State of Delaware is located at the Corporation Service Company, 1013
Centre Road, in the city of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, County of New Castle,
and the Corporation Service Company is the registered agent of the Surviving
Corporation at such address.
4.6 FIRPTA Notification.
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(a) On the Effective Date of the Merger, Active California shall
deliver to Active Delaware, as agent for the shareholders of Active California,
a properly executed statement (the "Statement") in substantially the form
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attached hereto as Exhibit A. Active Delaware shall retain the Statement for a
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period of not less than seven years and shall, upon request, provide a copy
thereof to any person that was a shareholder of Active California immediately
prior to the Merger. In consequence of the approval of the Merger by the
shareholders of Active California, (i) such shareholders shall be considered to
have requested
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that the Statement be delivered to Active Delaware as their agent and (ii)
Active Delaware shall be considered to have received a copy of the Statement at
the request of the Active California shareholders for purposes of satisfying
Active Delaware's obligations under Treasury Regulation Section 1.1445-2(c)(3).
(b) Active California shall deliver to the Internal Revenue Service
a notice regarding the Statement in accordance with the requirements of Treasury
Regulation Section 1.897-2(h)(2).
4.7 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.
4.8 Governing Law; Jurisdiction. This Agreement and all acts and
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transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of California, without giving effect to principles of conflicts of
law. Each of the parties to this Agreement consents to the exclusive
jurisdiction and venue of the courts of the state and federal courts of Santa
▇▇▇▇▇ County, California.
4.9 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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The undersigned authorized representatives of the Constituent Corporations
have executed and acknowledged this Agreement as of the date first set forth
above.
Active Software, Inc., a Delaware
corporation
___________________________________
▇▇▇ ▇. ▇▇▇▇
President and Chief Executive Officer
Active Software, Inc., a California
corporation
___________________________________
▇▇▇ ▇. ▇▇▇▇, Vice President, Finance and
Administration and Chief Financial Officer
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EXHIBIT A -- FORM OF FIRPTA CERTIFICATE
July ____, 1999
Assistant Commissioner (International)
Director, Office of Compliance
OP:I:C:E:666
▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
COMSAT Building
Washington, D.C. 20024
NOTICE TO THE INTERNAL REVENUE SERVICE OF ACTIVE SOFTWARE, INC., A
CALIFORNIA CORPORATION, UNITED STATES REAL PROPERTY HOLDING CORPORATION
STATUS UNDER TREASURY REGULATION 1.897-2(H)(2)
Dear Sir:
1. This Notice is being filed by Active Software, Inc., a California
Corporation, ("Target") pursuant to section 1.897-2(h)(2) of the Treasury
Regulations promulgated under the Internal Revenue Code of 1986, as amended (the
"Code").
2. The undersigned, on behalf of Target hereby declares that stock of
Target is not a United States real property interest within the meaning of
section 897 of the Code because Target is not and has not been a United States
real property holding corporation as that term is defined in section 897(c) (2)
of the Code during the applicable period specified in section 897(c) (1) (A)
(ii) of the Code.
3. Target's United States taxpayer identifying number is: ▇▇-▇▇▇▇▇▇▇
4. Target's address is:
Active Software, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. In connection with the acquisition of Target by Active Software,
Inc., a Delaware corporation ("Acquiror"), the undersigned provided the attached
statement to Acquiror declaring that an interest in Target is not a United
States real property interest. The statement was voluntarily provided in
response to a request from the transferee, Acquiror under Regulation 1.1445-
2(c) (3) (i).
Acquiror's United States taxpayer identifying number is: ▇▇-▇▇▇▇▇▇▇
Acquiror's address is:
Active Software, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. No supplemental statements pursuant to Treasury Regulations section
1.897-2(h)(5) are required to be filed herewith.
7. Under penalties of perjury the undersigned declares that he has
examined this certification, and the attachment hereto, and to the best of his
knowledge and belief they are true, correct and complete. The undersigned
further declares that he is a responsible officer and that he has authority to
sign this document on behalf of Target.
A copy of the statement provided pursuant to Treasury Regulation
(S)(S)1.897-2(h)(2) and 1.1445-2(c)(3)(i) is attached.
________________________________
▇▇▇ ▇. ▇▇▇▇, Vice President Finance
and Administration and Chief
Financial Officer
ACTIVE SOFTWARE, INC.
A California Corporation
OFFICERS' CERTIFICATE OF APPROVAL OF THE MERGER
▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ certify that:
1. They are the Vice President, Finance and Administration and Chief
Financial Officer and the Secretary, respectively, of Active Software, Inc. a
corporation organized under the laws of the State of California.
2. The corporation has authorized two classes of stock, designated "Common
Stock" and "Preferred Stock," respectively.
3. There were ___________ shares of Common Stock and _________ shares of
Preferred Stock outstanding as of the record date (the "Record Date") and
entitled to vote by written consent of the shareholders the Agreement and Plan
of Merger attached hereto (the "Merger Agreement") was approved.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class and series of
stock which equaled or exceeded the vote required.
5. The vote required to approve the Merger was a majority of the
outstanding shares of Common Stock and two-thirds of the outstanding shares of
Preferred Stock, voting as separate classes.
▇▇▇ ▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ further declare under penalty of perjury under
the laws of the States of California and Delaware that each has read the
foregoing certificate and knows the contents thereof and that the same is true
and correct of his own knowledge.
Executed in Santa Clara, California on July _____, 1999.
______________________________________________
▇▇▇ ▇. ▇▇▇▇, Vice President, Finance
and Administration and Chief Financial Officer
______________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary
ACTIVE SOFTWARE, INC.
A Delaware Corporation
OFFICERS' CERTIFICATE OF APPROVAL OF MERGER
▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ certify that:
1. They are the President and Chief Executive Officer and the Secretary,
respectively, of Active Software, Inc. a corporation organized under the laws of
the State of Delaware.
2. The corporation has authorized two classes of stock, designated "Common
Stock" and "Preferred Stock," respectively.
3. There are 100 shares of Common Stock outstanding and entitled to vote
on the Agreement and Plan of Merger attached hereto (the "Merger Agreement").
There are no shares of Preferred Stock outstanding.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class and series of
stock which equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes entitled to
be cast by holders of outstanding shares of Common Stock.
▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ further declare under penalty of perjury
under the laws of the States of Delaware and California that each has read the
foregoing certificate and knows the contents thereof and that the same is true
and correct of each's own knowledge.
Executed in Santa Clara, California on July ____, 1999
________________________________
▇▇▇ ▇. ▇▇▇▇, President and Chief
Executive Officer
________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary