EXHIBIT 2.5
AGREEMENT AND PLAN OF MERGER
AMONG
CUTTING EDGE SOFTWARE, INC.
AND
CES II ACQUISITION, INC.
AUGUST 21, 2002
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of August 21, 2002 is
entered into by and between Cutting Edge Software, Inc., a Texas corporation
("Cutting Edge"), and CES II Acquisition, Inc., a Texas corporation ("CESII").
Certain terms used herein but not otherwise defined shall have the meanings
ascribed thereto in Exhibit A attached hereto.
WHEREAS, the respective Boards of Directors of Cutting Edge and CESII
have determined that it is advisable and in the best interests of their
respective shareholders to consummate the merger of Cutting Edge with and into
CESII (the "Merger"), upon the terms and subject to the conditions set forth
herein; and
WHEREAS, the respective Boards of Directors of Cutting Edge and CESII
have approved the transactions contemplated by this Agreement, subject to
approval of such transactions by the shareholders of Cutting Edge and the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the conditions of
this Agreement, and in accordance with the applicable provisions of the TBCA, at
the Effective Time, Cutting Edge shall be merged with and into CESII. As a
result of the Merger, the separate corporate existence of Cutting Edge shall
cease and CESII shall continue as the surviving corporation of the Merger (the
"Surviving Corporation"). The Merger is intended to qualify as a reorganization
under Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended.
Section 1.2 Effective Time. Subject to the terms and conditions of this
Agreement, the parties hereto shall cause the Merger to be consummated by
filing, as soon as practicable after the Closing (as hereinafter defined),
articles of merger (the "Articles of Merger") with the Secretary of State of the
State of Texas, substantially in the form set forth in Exhibit B attached
hereto. The date and time of acceptance of the filing of the Articles of Merger
with the Secretary of State of the State of Texas (or such later time as shall
be agreed to in writing by the parties hereto and specified in the Articles of
Merger) will be the "Effective Time." The Closing shall take place at 10:00 a.m.
(Dallas time) on the Business Day immediately after the date on which all the
conditions to Closing set forth in Article II hereto shall have been satisfied,
at the offices of Jackson Walker, 2435 North Central Expressway, Suite 600,
Richardson, Texas 75080, or such other time, date and place as the parties shall
agree.
Section 1.3 Effects of the Merger. Subject to Sections 1.4 and 1.5, the
Merger shall have the effects set forth in the applicable provisions of the
TBCA. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time all the property, rights, privileges, immunities, powers and
franchises of Cutting Edge and CESII shall vest in the
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Surviving Corporation, and all debts, liabilities and duties of Cutting Edge and
CESII shall become the debts, liabilities and duties of the Surviving
Corporation.
Section 1.4 Articles of Incorporation; Bylaws.
(a) At the Effective Time and without any further action on the
part of Cutting Edge or CESII, the Articles of Incorporation of CESII as in
effect immediately prior to the Effective Time, as amended or provided in the
Articles of Merger, shall be the Articles of Incorporation of the Surviving
Corporation until thereafter amended as provided therein and under the TBCA.
(b) At the Effective Time and without any further action on the
part of Cutting Edge or CESII, the bylaws of CESII shall be the bylaws of the
Surviving Corporation and thereafter may be amended or repealed in accordance
with their terms or the terms of the articles of incorporation of the Surviving
Corporation and as provided by law.
Section 1.5 Directors and Officers.
(a) At the Effective Time, the directors of Cutting Edge shall
serve as directors of the Surviving Corporation until their successors shall
have been duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's Articles
of Incorporation and Bylaws.
(b) At the Effective Time, the officers of Cutting Edge shall
serve as officers of the Surviving Corporation, in the capacities set forth
opposite their names, until their successors shall have been duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Articles of Incorporation and
Bylaws.
Section 1.6 Effect on Capital Stock. At the Effective Time, by virtue
of the Merger and without any action on the part of Cutting Edge of CESII any
holder of any shares of capital stock of Cutting Edge:
(a) Each share of Cutting Edge Common Stock that is held in the
treasury of Cutting Edge or of any of its subsidiaries shall be canceled and
retired and no capital stock of the Surviving Corporation, or other
consideration shall be paid or delivered in exchange therefore.
(b) Each remaining outstanding share of Cutting Edge Common
Stock shall be converted into the right to receive one share of Surviving
Corporation Common Stock (the "Merger Consideration").
(c) Each share of CESII Common Stock issued and outstanding
immediately prior to the Effective Date shall be shall be canceled and retired.
Section 1.7 Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of Cutting Edge or CESII, any
deeds, bills of sale, assignments or assurances and to
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take and do, in the name and on behalf of Cutting Edge or CESII, any other
actions and things to vest, perfect or confirm of record or otherwise in the
Surviving Corporation any and all right, title and interest in, to and under any
of the rights, properties or assets acquired or to be acquired by the Surviving
Corporation as a result of, or in connection with, the Merger.
ARTICLE II
CONDITIONS
Section 2.1 Conditions to the Obligations of Each Party. The
obligations of Cutting Edge and CESII to consummate the Merger are subject to
the consummation of the merger of CES Acquisition, Inc., a Texas corporation
("CES") with and into Cutting Edge pursuant to the terms of that certain
Agreement and Plan of Merger (the "Agreement"), dated as of the date hereof, by
and among Cutting Edge, Jeff Musa, the sole shareholder of Cutting Edge,
Mobility Electronics, Inc., a Delaware corporation, and CES Acquisition, Inc., a
Texas corporation.
ARTICLE III
MISCELLANEOUS
Section 3.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented in any and all respects by
written agreement of the parties hereto, pursuant to action taken by their
respective Boards of Directors, at any time prior to the Effective Time with
respect to any of the terms contained herein.
Section 3.2 Entire Agreement; No Third-Party Beneficiaries. This
Agreement and (including the exhibits hereto and the documents and the
instruments referred to herein and therein) constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof, and are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
Section 3.3 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby may be consummated as
originally contemplated to the fullest extent possible.
Section 3.4 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Texas.
Section 3.5 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
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Section 3.6 Headings. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not affect in any way the meaning or
interpretation of this Agreement. References to Articles or Sections, unless
otherwise specified, are to Articles and Sections of this Agreement.
IN WITNESS WHEREOF, Cutting Edge and CESII caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
CUTTING EDGE SOFTWARE, INC.
By: /s/Charles R. Mollo
----------------------------------------
Charles R. Mollo
President and Chief Executive Officer
CES II ACQUISITION, INC.
By: /s/Charles R. Mollo
---------------------------------------
Charles R. Mollo
President and Chief Executive Officer
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EXHIBIT A
DEFINITIONS
"BUSINESS DAY" means any day other than a Saturday, a Sunday, or a bank
holiday in the State of Delaware.
"CESII COMMON STOCK" shall mean the common stock, par value $0.01 per
share, of CESII.
"CLOSING" shall mean the closing of the Merger.
"CLOSING DATE" shall mean the date of Closing.
"CUTTING EDGE COMMON STOCK" shall mean the common stock, par value
$0.01 per share, of Cutting Edge Software, Inc.
"CUTTING EDGE SHAREHOLDER APPROVAL" shall mean approval of the Merger
by the shareholders of Cutting Edge in accordance with the TBCA.
"EFFECTIVE TIME" shall have the meaning set forth in Section 1.2.
"GOVERNMENTAL ENTITY" shall mean any United States or foreign court,
arbitral tribunal, administrative agency or commission or other governmental or
other regulatory authority, body, commission or agency.
"MERGER CONSIDERATION" shall have the meaning set forth in Section
1.6(a)
"SURVIVING CORPORATION" shall have the meaning set forth in Section
1.1.
"SURVIVING COMMON STOCK" shall mean CESII Common Stock from and after
the Effective Date.
"TBCA" shall mean the Texas Business Corporation Act.
A-1
EXHIBIT B
ARTICLES OF MERGER
B-1