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EXHIBIT 99.A-5
Form 8-K
Agreement and Plan of Acquisition
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made
and entered into on March 5, 1999, by and among TOUCHSTONE SOFTWARE CORPORATION,
a Delaware corporation ("TouchStone"), Unicore Acquisition Corp., a newly formed
Delaware corporation and wholly-owned subsidiary of TouchStone ("Subsidiary"),
and Unicore Software, Inc., a Massachusetts corporation ("Unicore"). Subsidiary
and Unicore are sometimes hereinafter collectively referred to as the
"Constituent Corporations."
R E C I T A L S
A. Subsidiary is authorized to issue 1,000 shares of Common Stock,
$.001 par value ("Subsidiary Common Stock"), of which 1,000 shares have been
issued and are outstanding as of the date hereof, all of which are owned,
beneficially and of record, by TouchStone.
B. Unicore is authorized to issue 200,000 shares of Common Stock,
without par value ("Unicore Common Stock"), of which 100 shares have been issued
and are outstanding as of the date hereof.
▇. ▇▇▇▇▇▇▇▇▇▇ and the stockholders of Unicore have previously entered
into that certain Agreement and Plan of Acquisition dated as of March 5, 1999
(the "Acquisition Agreement"), for the purposes of setting forth all of the
terms and conditions upon which Unicore would be merged with and into Subsidiary
(the "Merger") in accordance with the provisions of the Delaware General
Corporation Law, the Massachusetts Business Corporations Law and the terms and
conditions hereinafter set forth.
D. The Board of Directors of each of TouchStone, Subsidiary and Unicore
has approved the Merger and the transactions contemplated by this Agreement as
being in the best interests of each such corporation and their respective
stockholders, upon the terms and subject to the conditions set forth herein,
TouchStone, as the sole shareholder of Subsidiary has approved the Merger and
the transactions contemplated by this Agreement, and the two shareholders of
Unicore have approved the Merger and the transactions contemplated by this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, and in accordance with the
applicable provisions of the Delaware General Corporations Law and the
Massachusetts Business Corporations Law, the parties hereto covenant and agree
as follows:
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ARTICLE I
THE MERGER, THE SURVIVING CORPORATION
AND THE EFFECTIVE DATE
1.1 As soon as practicable following the fulfillment (or waiver, to the
extent permitted therein) of the conditions specified in Article IV hereof,
Unicore shall merge with and into Subsidiary (the "Merger"), with Subsidiary to
be the surviving corporation in the Merger.
1.2 The Merger shall occur and be effective at the time and on the date
that this Agreement, having been duly executed and acknowledged, together with
any and all other necessary documents and instruments, is filed with the
Secretary of State of Delaware and the Articles of Merger entered into by the
Constituent Corporations are filed with the Secretary of State of the
Commonwealth of Massachusetts. The date on which the Merger occurs and becomes
effective is hereby defined to be and is hereinafter referred to as the
"Effective Date" and the time of such effectiveness is hereby defined to be and
is hereinafter referred to as the "Effective Time."
1.3 Subsidiary, as the surviving corporation in the Merger (hereinafter
as such referred to as the "Surviving Corporation"), shall continue its
corporate existence under the laws of the State of Delaware and shall continue
to conduct the business and operations previously conducted by both of the
Constituent Corporations. On the Effective Date, the separate existence and
corporate organization of Unicore, except insofar as it may be continued by
operation of law, shall be terminated and cease.
ARTICLE II
ARTICLES OF INCORPORATION, BYLAWS,
AND DIRECTORS OF THE SURVIVING CORPORATION
2.1 Upon filing of this Agreement with the Delaware Secretary of State,
the Certificate of Incorporation of Subsidiary as in effect immediately before
the Effective Time shall be amended to change the corporate name of Subsidiary
to "Unicore Software, Inc.", and the Certificate of Incorporation of Subsidiary,
as so amended, shall be the Certificate of Incorporation of the Surviving
Corporation until amended or repealed in accordance with the provisions thereof
and of applicable law.
2.2 The Bylaws of Subsidiary as in effect immediately prior to the
Effective Date shall be the Bylaws of the Surviving Corporation, until amended
or repealed in accordance with applicable law, the Articles of Incorporation of
the Surviving Corporation or such Bylaws.
2.3 There shall be three (3) directors of the Surviving Corporation
from and after the Effective Date (until changed in accordance with applicable
law and the Articles of Incorporation and Bylaws of the Surviving Corporation),
who shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇.
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ARTICLE III
TREATMENT OF SHARES OF EACH OF THE
CONSTITUENT CORPORATIONS
3.1 On the Effective Date:
(a) Each share of Unicore Common Stock outstanding immediately
prior to the Merger shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted automatically into and become the right
to receive the following:
(i) From and after the Effective time, the sum of
$12,050 in cash; and
(ii) Prior to the close of business on the date on
which the Annual Meeting of the stockholders of TouchStone is held as provided
in Section 8.5 of the Acquisition Agreement, the sum of $33,500, as follows:
(A) By issuance and delivery of an aggregate
of 33,500 shares of the authorized but previously unissued Common Stock of
TouchStone (the "TouchStone Common Stock"), provided that the stockholders of
TouchStone have approved the issuance and delivery of the TouchStone Common
Stock at the Annual Meeting;
(B) By payment in cash, by wire transfer or
certified or cashier's check or checks, in the event that the stockholders of
TouchStone do not approve the issuance and delivery of the TouchStone Common
Stock at the Annual Meeting; or
(C) By issuance and delivery of an aggregate
of 33,500 shares of the authorized but previously unissued Common Stock of
TouchStone even if the stockholders of TouchStone do not approve the issuance
and delivery of TouchStone Common Stock at the Annual Meeting in the
circumstances described in Section 8.5(f) of the Acquisition Agreement.
(b) All options, warrants and other rights to purchase shares
of Unicore's Common Stock outstanding immediately prior to the Merger shall be
canceled and retired, and all rights in respect thereof shall cease to exist.
(c) All shares of Unicore's Common Stock owned by TouchStone
immediately prior to the Effective Time, if any, shall be canceled and retired,
and all rights in respect thereof shall cease to exist.
(d) Each share of Common Stock of Subsidiary issued and
outstanding immediately prior to the Closing shall be converted, by virtue of
the Merger and without any action on the part of the holder thereof, into one
share of Common Stock of the Surviving Corporation.
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3.2 After the Effective Date, certificates formerly representing shares
of Unicore's Common Stock shall be deemed for all purposes to evidence solely
the right to receive, without interest thereon, the cash and/or shares of
TouchStone's Common Stock which the holders thereof have the right to receive
pursuant to the provisions of Section 3.1(a) above less, in each case, the
amount of any required withholding taxes.
3.3 Each Unicore shareholder, if any, who becomes entitled, pursuant to
the provisions of Massachusetts law, to the payment in cash of the "fair market
value" of such holders shares of Unicore Common Stock ("Perfected Dissenting
Shares"), shall receive payment therefor from TouchStone, but only after the
value thereof shall have been agreed upon or finally determined pursuant to such
provisions. Perfected Dissenting Shares acquired by TouchStone, if any, shall be
canceled.
ARTICLE IV
DEFERRAL, TERMINATION AND AMENDMENT
4.1 Consummation of the Merger may be deferred by agreement of the
respective Boards of Directors of each of the Constituent Corporation for a
reasonable period of time if it is determined that deferral would be in the best
interests of the respective shareholders of the parties.
4.2 This Agreement may be terminated as provided in the Acquisition
Agreement at any time prior to the Effective Time. In the event of such
termination, this Agreement shall become wholly void and of no effect, and there
shall be no liability on the part of TouchStone, Subsidiary or Unicore, or the
Board of Directors or stockholders of any of them, except as set forth in the
Acquisition Agreement and as provided in Section 4.3 hereof.
4.3 If the Merger becomes effective, the Surviving Corporation shall
assume and pay all expenses in connection therewith not theretofore paid by the
respective parties. If for any reason the Merger shall not become effective, the
respective expenses of each party incurred in connection with all the
proceedings taken in respect of this Agreement or relating thereto shall be paid
in accordance with the provisions of the Acquisition Agreement.
4.4 The parties hereto, by mutual consent of their respective Boards of
Directors, may amend, modify or supplement this Agreement in such matter as may
be agreed upon by them in writing at any time before the Effective Time;
provided, however, that no such amendment, modification or supplement not
adopted and approved by the shareholders of Unicore shall affect the rights of
such shareholders or change any of the principal terms of this Agreement.
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ARTICLE V
TRANSFER OF ASSETS AND LIABILITIES
5.1 On the Effective Date, the rights, privileges, powers and
franchises, both of a public as well as a private nature, of each of the
Constituent Corporations shall be vested in and possessed by the Surviving
Corporation, subject to all of the disabilities, duties and restrictions of or
upon each of the Constituent Corporations; and all rights, privileges, powers
and franchises of each of the Constituent Corporations, and all property, real,
personal and mixed, of each of the Constituent Corporations, and all debts due
to each of the Constituent Corporations on whatever account, and all things in
action or belonging to each of the Constituent Corporations shall be transferred
to and vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest, shall be
thereafter as effectually the property of the Surviving Corporation as they were
of the Constituent Corporations, and the title to any real estate vested by deed
or otherwise in either of the Constituent Corporations shall not revert or be in
any way impaired by reason of the Merger; provided, however, that the
liabilities of the Constituent Corporations and of their shareholders,
directors, and officers shall not be affected and all rights of creditors and
all liens upon any property of either of the Constituent Corporations shall be
preserved unimpaired, and any claim existing or action or proceeding pending by
or against either of the Constituent Corporations may be prosecuted to judgment
as if the Merger had not taken place except as they may be modified with the
consent of such creditors, and all debts, liabilities and duties of each of the
Constituent Corporations shall attach to the Surviving Corporation, and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it.
5.2 The parties hereto agree that, from time to time and as when
requested by the Surviving Corporation, or by its successors and assigns, to the
extent permitted by law, the officers and directors of Subsidiary and of the
Surviving Corporation are fully authorized in the name of Subsidiary or
otherwise to execute and deliver all such deeds, assignments, confirmations,
assurances and other instruments and to take or cause to be taken all such
further action as the Surviving Corporation may deem necessary or desirable in
order to vest, perfect, confirm in or assure the Surviving Corporation title to
and possession of all said property, rights, privileges, powers and franchises
and otherwise to carry out the intent and purposes of this Agreement.
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ARTICLE VI
MISCELLANEOUS
For the convenience of the parties and to facilitate any filing and
recording of this Agreement, any number of counterparts hereof may be executed,
each of which shall be deemed to be an original of this Agreement but all of
which together shall constitute one and the same instrument.
This Agreement and the legal relations between the parties hereto shall
be governed by and construed in accordance with the laws of the State of
Delaware except to the extent that the laws of the Commonwealth of Massachusetts
apply.
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by resolutions adopted by their respective
Boards of Directors have caused this Agreement to be executed as an instrument
under seal by the duly authorized officers of each party hereto, all as of the
day and year first above written.
TOUCHSTONE SOFTWARE CORPORATION
By:
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Title:
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By:
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Title:
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UNICORE ACQUISITION CORP.
By:
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Title:
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By:
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Title:
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UNICORE SOFTWARE, INC.
By:
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Title:
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By:
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Title:
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