PLAN AND AGREEMENT OF MERGER
This Plan and Agreement of Merger, dated as of March 10, 1995, is
executed and entered into pursuant to the New York Business Corporation Law and
the Virginia Stock Corporation Act, by and between Infodata Systems Inc., a New
York Corporation ("Infodata"), and Virginia Infodata Systems, Inc., a Virginia
Corporation and a wholly-owned subsidiary of Infodata ("Infodata Virginia"),
such corporations being hereinafter sometimes collectively referred as the
"Constituent Corporations."
WITNESSETH
WHEREAS, Infodata Virginia is a corporation duly organized and existing
under the laws of the State of Virginia, having been incorporated on March 9,
1995, and having an authorized capital stock of (i) 3,333,333 shares of common
stock, par value $.03 per share, of which 1,000 shares are issued and
outstanding and which 1,000 shares are owned by Infodata, and (ii) 500,000
shares of preferred stock, par value $1.00 per share, none of which are issued;
and
WHEREAS, Infodata is a corporation duly organized and existing under the
laws of the State of New York, having been originally incorporated on May 13,
1968, and having a current authorized capital stock of 3,333,333 shares of
common stock, par value $.03 per share, of which 604,874 shares are issued and
outstanding, and 500,000 shares of preferred stock, par value $1.00 per share,
of which 133,500 shares are issued and outstanding; and
WHEREAS, the respective Boards of Directors of Infodata and Infodata
Virginia deem it advisable and in the best interests of said corporations that
Infodata be merged with and into Infodata Virginia as the surviving corporation
as authorized by the statutes of the States of New York and Virginia under and
pursuant to the terms and conditions hereinafter set forth, and each of such
boards has duly approved this form of Plan and Agreement of Merger (the "Plan").
NOW, THEREFORE, in consideration of the promises and mutual covenants
and agreements herein contained, and for the purpose of setting forth the terms
and conditions of said merger, the mode of carrying the same into effect, the
manner and basis of converting the shares of each Constituent Corporation into
shares of the Surviving Corporation (as hereinafter defined) and such other
details and provisions as are deemed necessary or desirable, the parties hereto
have agreed and do hereby agree, subject to the approval or adoption of the Plan
by the requisite vote of the shareholders of each Constituent Corporation and to
the conditions hereinafter set forth, as follows:
ARTICLE I
MERGER AND NAME OF SURVIVING CORPORATION
At the Effective Time of the merger (as hereinafter defined), Infodata
shall be merged with and into Infodata Virginia, which is hereby designated as
the "Surviving Corporation" which shall continue its corporate existence as a
Virginia corporation to be governed by the laws of the State of Virginia, the
name of which shall be changed to Infodata Systems Inc. and which shall maintain
a registered office in the State of Virginia at 12150 Monument Drive (Suite 400)
Fairfax, Virginia 22033. The registered agent of the Surviving Corporation at
such address shall be Harry Kaplowitz, President of the Surviving Corporation.
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ARTICLE II
TERMS AND CONDITIONS OF MERGER
The terms and conditions of the merger (in addition to those set forth
elsewhere in the Plan) are as follows;
(a) Upon and following the Effective Time of the merger:
(1) The Constituent Corporations shall be merged into a single corporation,
which shall be Infodata Virginia, the corporation designated herein as the
Surviving Corporation.
(2) The separate existence of Infodata shall cease.
(3) The Surviving Corporation shall thereupon and thereafter possess all
the rights, privileges, powers, immunities and franchises, of a public as well
as of a private nature, and be subject to all the restrictions, disabilities and
duties of each Constituent Corporation; and the rights, privileges, powers and
franchises of each Constituent Corporation, and all property, real, personal and
mixed, and all debts due to either Constituent Corporation on whatever account,
including subscriptions for stock, and all other choses in action and all and
every other interest, of or belonging to each Constituent Corporation, shall be
taken and deemed to be transferred to and vested in the Surviving Corporation
without further act or deed; 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 respective
Constituent Corporations, and the title to any real estate vested by deed or
otherwise in either Constituent Corporation shall not revert or be in any way
impaired by reason of the merger, but all rights of creditors and all liens upon
any property of either Constituent Corporation shall be preserved unimpaired,
and all debts, liabilities and duties of the respective Constituent Corporations
shall thenceforth attach to the Surviving Corporation and may be enforced
against it to the same extent as if said debts, liabilities and duties had been
incurred or contracted by it. Specifically, but not by way of limitation, the
Surviving Corporation shall be responsible and liable to dissenting shareholders
of Infodata and any action or proceeding whether civil, criminal or
administrative, pending by or against either Constituent Corporation shall be
prosecuted as if the merger had not taken place, or the Surviving Corporation
may be substituted in such action or proceeding.
(4) All corporate acts, plans, policies, contracts, approvals and
authorizations of Infodata and its shareholders, Board of Directors, committees
elected or appointed by the Board of Directors, officers and agents, which were
valid and effective immediately prior to the Effective Time of the merger shall
be taken for all purposes as the acts, plans, policies, contracts, approvals and
authorizations of the Surviving Corporation and shall be as effective and
binding thereon as the same were with respect to Infodata. The employees of
Infodata shall become the employees of the Surviving Corporation and continue to
be entitled to the same rights and benefits which they enjoyed as employees of
Infodata.
(5) The assets, liabilities, reserves and accounts of each Constituent
Corporation shall be recorded on the books of the Surviving Corporation at the
amounts at which they, respectively, shall then be carried on the books of such
Constituent Corporation subject to such adjustments or eliminations of
intercompany items as may be appropriate in giving effect to the merger.
(6) All obligations of Infodata under any and all employee benefit plans in
effect as of the Effective Time of the merger, or with respect to which employee
rights or accrued benefits are outstanding as of such time, including the
assumption of all outstanding stock options issued under the Incentive Stock
Option Plan and the Non-Qualified Stock Option Plan of Infodata, the proposed
1995 Stock Option Plan of Infodata, if adopted, and any warrants issued by
Infodata pursuant to its Stock Warrant Purchase Plan, shall be assumed by
Infodata Virginia as of the Effective Time of the merger; provided, however,
that the common stock of Infodata Virginia shall be substituted for common stock
of Infodata thereunder, without any action on the part
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of the holder thereof. As of the Effective Time of the merger, Infodata shall
adopt and continue in effect all such employee benefit and warrant purchase
plans, upon the same terms and conditions as were in effect immediately prior to
the merger and Infodata Virginia shall reserve that number of shares of Infodata
Virginia common stock which is equal to the number of shares of common stock of
Infodata that is reserved under any and all employee benefit and warrant
purchase plans of Infodata as of the Effective Time of the merger.
(b) The Board of Directors, and the members thereof, the committees of the
Board of Directors, and the members thereof, and the officers of Infodata
immediately prior to the Effective Time of the merger shall be and constitute
the Board of Directors, and the members thereof, the committees of the Board of
Directors, and the members thereof, and the officers of the Surviving
Corporation, respectively, to serve in accordance with the Bylaws of the
Surviving Corporation until their respective successors shall have been duly
elected and qualified.
ARTICLE III
CAPITALIZATION OF SURVIVING CORPORATION
AND MANNER AND BASIS OF CONVERTING SHARES
The total authorized capital stock of the Surviving Corporation shall be
as set forth in the Articles of Incorporation of the Surviving Corporation, that
is 3,333,333 shares of common stock, $.03 par value per share (the "Common Stock
of Surviving Corporation"), and 500,000 shares of preferred stock, $1.00 par
value per share (the "Preferred Stock of Surviving Corporation").
The manner and basis of converting shares of each Constituent
Corporation into shares of the Surviving Corporation and the mode of carrying
the merger into effect are as follows:
(a) The 1,000 shares of common stock of Infodata Virginia owned and held
by Infodata immediately prior to the Effective Time of the merger shall, at the
Effective Time of the merger, be deemed to have been cancelled immediately prior
thereto and no stock of the Surviving Corporation shall be issued on account
thereof.
(b) At the Effective Time of the merger, each share of common stock of
Infodata outstanding at the Effective Time of the merger shall be converted into
one fully paid and nonassessable share of Common Stock of the Surviving
Corporation, without any action on the part of the holder thereof. After the
Effective Time of the merger, each holder of an outstanding certificate which
prior thereto represented shares of common stock of Infodata shall be entitled,
upon surrender thereof to any transfer agent for the Common Stock of the
Surviving Corporation, to receive in exchange therefor a certificate or
certificates representing the number of shares of Common Stock of the Surviving
Corporation into which the shares of the common stock of Infodata so surrendered
shall have been converted as aforesaid of such denominations and registered in
such names as such holder may request. Until so surrendered, each such
outstanding certificate which, prior to the Effective Time of the merger
represented shares of common stock of Infodata shall for all purposes evidence
the ownership of the shares of Common Stock of the Surviving Corporation into
which such shares shall have been so converted.
(c) At the Effective Time of the merger, each share of preferred stock of
Infodata outstanding at the Effective Time of the merger shall be converted into
one fully-paid and nonassessable share of Preferred Stock of the Surviving
Corporation, without any action on the part of the holder thereof. After the
Effective Time of the merger, each holder of an outstanding certificate which
prior thereto represented shares of preferred stock of Infodata shall be
entitled upon surrender thereof to any transfer agent for the Preferred Stock of
the Surviving Corporation, to receive in exchange therefore a certificate or
certificates representing the number of shares of Preferred Stock of the
Surviving Corporation into which the shares of preferred stock of Infodata so
surrendered shall have been converted as aforesaid, of such denominations and
registered in such names as such holder may request. Until so surrendered, each
such outstanding certificate which, prior to the Effective Time of the merger,
represented shares of preferred stock of Infodata shall for all purposes
evidence the ownership of shares of Preferred Stock of the Surviving Corporation
into which such shares shall have been so converted.
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(d) All shares of Common Stock and Preferred Stock of the Surviving
Corporation into which shares of common stock and preferred stock of Infodata
shall have been converted pursuant to this ARTICLE III shall be issued in full
satisfaction of all rights pertaining to such converted shares.
(e) If any certificate of shares of Common Stock or Preferred Stock of
the Surviving Corporation is to be issued in a name other than that in which the
certificate surrendered in exchange therefore is registered, it shall be a
condition of the issuance thereof that the certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and that the person
requesting such exchange pay to the Surviving Corporation or any agent
designated by it any transfer or other taxes required by reason of the issuance
of a certificate for shares of Common Stock or Preferred Stock of the Surviving
Corporation in any name other than that of the registered holder of the
certificate surrendered, or establish to the satisfaction of the Surviving
Corporation or any agent designated by it that such tax has been paid or is not
payable.
(f) Notwithstanding the provisions of this ARTICLE III, any outstanding
shares of common stock or preferred stock of Infodata held by shareholders who
shall have elected to dissent from the merger and who shall have exercised and
perfected appraisal rights with respect to such shares in accordance with
Section 623 of the New York Business Corporation Law ("Dissenting Shareholders")
shall not be converted into shares of Common Stock or Preferred Stock of the
Surviving Corporation but shall be entitled to receive only such consideration
as shall be provided in said Section 623, except that common stock and preferred
stock of Infodata outstanding at the Effective Time of the merger and held by a
Dissenting Shareholder who shall thereafter withdraw his election to dissent
from the merger or lose his right to dissent from the merger as provided in said
Section 623, shall be deemed converted as of the Effective Time of the merger,
into such number of shares of Common Stock or Preferred Stock of the Surviving
Corporation as such holder otherwise would have been entitled to receive as a
result of the merger.
ARTICLE IV
ARTICLES OF INCORPORATION AND BYLAWS
(a) The Articles of Incorporation of Infodata Virginia as existing and
constituted immediately prior to the Effective Time of the merger shall, upon
the merger's becoming effective, be and constitute the Articles of Incorporation
of the Surviving Corporation until amended in the manner provided by law.
(b) The Bylaws of Infodata Virginia as existing and constituted
immediately prior to the Effective Time of the merger shall, upon the merger's
becoming effective, be and constitute the Bylaws of the Surviving Corporation
until amended in the manner provided by law.
ARTICLE V
OTHER PROVISIONS WITH RESPECT TO MERGER
(a) The Plan shall be submitted to the shareholders of each Constituent
Corporation as provided by the applicable laws of the States of New York and
Virginia, respectively. As soon as practicable after the approval and adoption
thereof by the shareholders of each Constituent Corporation in accordance with
the requirements of the laws of the States of New York and Virginia and the
obtaining of all necessary regulatory approvals, all required documents shall be
executed, filed and recorded and all required acts shall be done in order to
accomplish the merger under the provisions of the applicable statutes of the
States of New York and Virginia.
(b) The Plan may be terminated at any time prior to the Effective Time
of the merger, whether before or after action thereon by the shareholders of the
Constituent Corporations, (i) by mutual consent of the Constituent Corporations,
expressed by action of their respective Boards of Directors, (ii) by consent of
Infodata, expressed by action of its Board of Directors, if the holders of more
than 5% of the outstanding shares of common stock of Infodata
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elect to exercise the right to dissent under applicable provisions of New York
law in connection with the merger contemplated hereby, or (iii) by action of the
Board of Directors of either of the Constituent Corporations if there shall not
have been received an opinion of counsel to the effect that (A) the merger of
Infodata and Infodata Virginia as provided herein will constitute a
reorganization under the Internal Revenue Code of 1986, as amended, (B) no gain
or loss will be recognized by the shareholders of Infodata upon the conversion
in the merger of their existing capital stock into capital stock of Infodata
Virginia, (C) the tax basis of the shares of stock of the Surviving Corporation
received by the shareholders of Infodata will be the same as the tax basis of
the shares of capital stock of Infodata exchanged therefor, (D) the holding
period of the shares of capital stock received by the shareholders of Infodata
will include the holding period of the shares of capital stock of Infodata
exchanged therefor, provided that such shares of capital stock of Infodata were
held as capital assets at the Effective Time of merger, (E) no gain or loss will
be recognized by Infodata Virginia or Infodata as the result of the receipt by
Infodata Virginia of all the assets of Infodata in exchange for shares of
capital stock of Infodata Virginia and the assumption by Infodata Virginia of
all the liabilities of Infodata and (F) the tax basis of the assets of Infodata
acquired by Infodata Virginia pursuant to the merger will be the same as the tax
basis and holding period of those assets in the hands of Infodata immediately
prior to the Effective Time of the merger.
(c) If the merger is consummated, the Surviving Corporation shall bear
and pay all costs and expenses incurred by each of the Constituent Corporations.
If the merger is not consummated, each Constituent Corporation shall bear and
pay all costs and expenses incurred by it or on its behalf.
(d) The Surviving Corporation, from and after the Effective Time of the
merger, agrees that it may be sued and served with process in the State of New
York in any proceeding for the enforcement of the rights of a Dissenting
Shareholder of Infodata against the Surviving Corporation. The Surviving
Corporation irrevocably appoints the Secretary of the State of New York as its
agent to accept service of process in any such proceeding. The Surviving
Corporation will promptly pay to the Dissenting Shareholders of Infodata the
amounts, if any, to which they shall be entitled under the New York Business
Corporation Law with respect to the rights of Dissenting Shareholders, provided
such Dissenting Shareholders act in strict compliance with the provisions of the
New York Business Corporation Law governing rights of Dissenting Shareholders in
the case of a merger.
(e) Infodata shall duly convene the 1995 Annual Meeting of Shareholders
of Infodata (the "Annual Meeting") in connection with which, among other things,
the approval by such shareholders of the Plan and the transactions contemplated
hereby, shall be solicited. Infodata shall use its reasonable best efforts to
obtain such approval. Infodata, as the sole shareholder of Infodata Virginia,
shall consent in writing to the execution of this Plan promptly after the date
of this Plan.
ARTICLE VI
APPROVAL AND EFFECTIVE TIME OF THE MERGER
(a) The merger shall become effective when all the following actions
shall have been taken
(1) The Plan shall be adopted and approved by the affirmative
vote of the holders of two-thirds of the shares of Infodata capital
stock outstanding at the record date of the Annual Meeting in accordance
with the New York Business Corporation Law,
(2) Articles of Merger setting forth the information required by,
and executed and verified in accordance with, the New York Business
Corporation Law, shall be filed in the office of the Department of State
of the State of New York, and
(3) The Plan, when executed and acknowledged in accordance with
the Virginia Stock Corporation Act, shall be filed in the office of the
Secretary of State of the State of Virginia (the particular time
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and date of filing of the Plan with the Secretary of State of the State of
Virginia being herein referred to as the "Effective Time")
(b) The Surviving Corporation shall cause duplicate, certified copies of
the Plan to be filed in the office of the Secretary of State of the State of
Virginia and with the Department of State of the State of New York. If at any
time the Surviving Corporation shall consider or be advised that any further
assignment or assurance in law or other action is necessary or desirable to
vest, perfect or confirm in the Surviving Corporation the title, or record or
otherwise, to any property or rights of Infodata acquired or to be acquired by
or as a result of the merger, the proper officers and directors of Infodata and
the Surviving Corporation, respectively, shall be and they hereby are severally
and fully authorized to execute and deliver such deeds, assignments and
assurances in law and take such other action as may be necessary or proper in
the name of Infodata or the Surviving Corporation to vest, perfect or confirm
title to such property or rights in the Surviving Corporation and otherwise
carry out the purposes of the Plan.
(c) For the convenience of the parties and to facilitate the filing and
recording of the Plan, any number of counterparts hereof may be executed, and
each such counterpart shall be deemed to be an original instrument.
(d) The Plan and the legal relations between the parties hereto shall be
governed by and construed in accordance with the laws of the State of Virginia
except insofar as the internal law of the State of New York shall mandatorily
apply to the merger.
(e) The Plan cannot be altered or amended except pursuant to an
instrument in writing signed on behalf of the parties hereto.
IN WITNESS WHEREOF, Infodata Virginia has caused the Plan to be signed
by its Chief Executive Officer and its Secretary and its corporate seal to be
affixed hereto pursuant to authorization contained in a resolution adopted by
its Board of Directors approving the Plan, and Infodata has caused the Plan to
be signed by its Chief Executive Officer and its Secretary and its corporate
seal to be affixed hereto pursuant to authorization contained in a resolution
adopted by its Board of Directors approving the Plan, all on the date first
above written.
VIRGINIA INFODATA SYSTEMS INC. INFODATA SYSTEMS INC.
a Virginia corporation a New York corporation
By HARRY KAPLOWITZ By HARRY KAPLOWITZ
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Harry Kaplowitz Harry Kaplowitz
President President
DAVID A. KARISH DAVID A. KARISH
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David A. Karish David A. Karish
Senior Vice President Senior Vice President
and Secretary/Treasurer and Secretary/Treasurer
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