EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF INTERNATIONAL NETWORK SERVICES, INC.
(A DELAWARE CORPORATION)
AND
INTERNATIONAL NETWORK SERVICES
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of December 28, 1998 (the
"AGREEMENT") is between International Network Services, Inc., a Delaware
corporation ("INS DELAWARE") and International Network Services, a California
corporation ("INS CALIFORNIA"). INS Delaware and INS California are sometimes
referred to herein as the "CONSTITUENT CORPORATIONS."
R E C I T A L S
A. INS Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 155,000,000
shares, 150,000,000 of which are designated "COMMON STOCK," par value $0.001
per share, and 5,000,000 of which are designated "PREFERRED STOCK," par value
$0.001 per share. The Preferred Stock of INS Delaware is undesignated as to
series, rights, preferences, privileges or restrictions. As of December 28,
1998, 100 shares of Common Stock were issued and outstanding, all of which
were held by INS California, and no shares of Preferred Stock were issued and
outstanding.
B. INS California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of
80,000,000 shares, 75,000,000 of which are designated "COMMON STOCK," no par
value, and 5,000,000 of which are designated "PREFERRED STOCK," par value, no
par value. The Preferred Stock of INS California is undesignated as to
series, rights, preferences, privileges or restrictions. As of October 30,
1998, 33,346,831 shares of Common Stock and no shares of Preferred Stock were
issued and outstanding.
C. The Board of Directors of INS California has determined that, for the
purpose of effecting the reincorporation of INS California in the State of
Delaware, it is advisable and in the best interests of INS California and its
shareholders that INS California merge with and into INS Delaware upon the terms
and conditions herein provided.
D. The respective Boards of Directors of INS Delaware and INS 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.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, INS Delaware and INS 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
Delaware General Corporation Law and the California General Corporation Law, INS
California shall be merged with and into INS Delaware (the "MERGER"), the
separate existence of INS California shall cease and INS Delaware shall survive
the Merger and shall continue to be governed by the laws of the State of
Delaware, and INS Delaware shall be, and is herein sometimes referred to as, the
"SURVIVING CORPORATION." The name of the Surviving Corporation shall be
International Network Services.
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1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when the
following actions shall have been completed:
(a) This Agreement and Merger shall have been adopted and approved by
the stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the California
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 Merger or an executed, acknowledged and
certified 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
separate existence of INS California shall cease and INS 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 INS
California's Board of Directors, (iii) shall succeed, without other transfer, to
all of the assets, rights, powers and property of INS 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 the debts, liabilities and
obligations of INS Delaware 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 INS California in the same manner as if
INS Delaware had itself incurred them, all as more fully provided under the
appli-cable provisions of the Delaware General Corporation Law and the
California General Corporation Law.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of INS
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 except that the First Article is to be amended in its
entirety to read as follows: "The name of the Corporation is International
Network Services (the "Corporation")."
2.2 BYLAWS. The Bylaws of INS Delaware as in effect immediately prior 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 INS 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 until as otherwise provided by law, or the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 INS CALIFORNIA COMMON STOCK. Upon the Effective Date of the Merger,
each share of INS 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 shares or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
Common Stock, par value $0.001 per share, of the Surviving Corporation.
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3.2 INS CALIFORNIA OPTIONS, STOCK PURCHASE RIGHTS AND CONVERTIBLE
SECURITIES.
(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume and continue the stock option plans and all other employee
benefit plans of INS California. Each outstanding and unexercised option or
other right to purchase or security convertible into INS California Common
Stock shall become an option or right to purchase or a security convertible
into the Surviving Corporation's Common Stock on the basis of one share of
the Surviving Corporation's Common Stock for each share of INS California
Common Stock issuable pursuant to any such option, stock purchase right or
convertible security, on the same terms and conditions and at an exercise
price per share equal to the exercise price applicable to any such INS
California option, stock purchase right or convertible security at the
Effective Date of the Merger. There are no options, purchase rights for or
securities convertible into Preferred Stock of INS California.
(b) A number of shares of the Surviving Corporation's Common Stock shall
be reserved for issuance upon the exercise of options, stock purchase rights
and convertible securities equal to the number of shares of INS California
Common Stock so reserved immediately prior to the Effective Date of the
Merger.
3.3 INS DELAWARE COMMON STOCK. Upon the Effective Date of the Merger, each
share of Common Stock, par value $0.001 per share, of INS Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by INS Delaware, the holder of such shares or any other person, be
canceled and returned to the status of authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of INS California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to ChaseMellon Shareholder Services, as exchange agent (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 into which the surrendered shares were
converted as herein provided. Unless and until so surrendered, each outstanding
certificate theretofore representing shares of INS California Common Stock shall
be deemed for all purposes to represent the number of shares of the Surviving
Corporation's Common Stock into which such shares of INS California Common Stock
were converted in the Merger.
The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any shares of stock represented by 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 of the Surviving Corporation represented by such
outstanding certificate as provided above.
Each certificate representing Common 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 INS 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.
If any certificate for shares of INS 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 INS Delaware
or 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 INS Delaware
that such tax has been paid or is not payable.
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IV. GENERAL
4.1 COVENANTS OF INS DELAWARE. INS Delaware covenants and agrees 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 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 INS Delaware of all of the franchise tax
liabilities of INS California;
(c) File an executed counterpart of this Agreement meeting the
requirements of the California General Corporation Law with the Secretary of
State of the State of California; and
(d) Take such other actions as may be required by the California General
Corporation Law.
4.2 FURTHER ASSURANCES. From time to time, as and when required by INS
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of INS California such deeds and other instruments, and there shall be
taken or caused to be taken by INS Delaware and INS California 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 INS Delaware the title to and possession
of all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of INS California and otherwise to carry out the
purposes of this Agreement, and the officers and directors of INS Delaware are
fully authorized in the name and on behalf of INS 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
Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either INS California or of INS
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of INS California or by the sole stockholder of INS Delaware, or by
both.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations may
amend this Agreement at any time prior to the filing of this Agreement with the
Secretaries of State of the States of Delaware and California, provided that an
amendment made subsequent to the adoption of this Agreement by the stockholders
of either Constituent Corporation shall not, unless approved by the stockholders
as required by law: (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 or series
of capital stock of any Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving Corporation
in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801,
County of New Castle and The Corporation Trust Company 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
principal place of business of the Surviving Corporation at 1213 Innsbruck
Drive, Sunnyvale, California 94089 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,
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 General Corporation Law.
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4.8 COUNTERPARTS. In order to facilitate the filing and recording of this
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.
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of International Network Services, Inc., a
Delaware corporation, and International Network Services, a California
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
INTERNATIONAL NETWORK SERVICES, INC.
a Delaware corporation
By: /s/ John L. Drew
-----------------------------------------
John L. Drew
President and Chief Executive Officer
By: /s/ Kevin J. Laughlin
-----------------------------------------
Kevin J. Laughlin
Secretary
INTERNATIONAL NETWORK SERVICES
a California corporation
By: /s/ John L. Drew
-----------------------------------------
John L. Drew
President and Chief Executive Officer
By: /s/ Kevin J. Laughlin
-----------------------------------------
Kevin J. Laughlin
Secretary
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INTERNATIONAL NETWORK SERVICES
(A CALIFORNIA CORPORATION)
OFFICERS' CERTIFICATE
John L. Drew and Kevin J. Laughlin certify that:
1. They are the President and the Secretary, respectively, of International
Network Services, 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. There are authorized 75,000,000
shares of Common Stock and 5,000,000 shares of Preferred Stock. The Preferred
Stock is undesignated as to series, rights, preferences or restrictions.
3. There were 33,010,460 shares of Common Stock and no shares of Preferred
Stock outstanding as of the record date (the "RECORD DATE") and entitled to vote
at the shareholders' meeting at which the Agreement and Plan of Merger (the
"MERGER AGREEMENT") attached hereto 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 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 Common Stock outstanding as of the Record Date, voting as
a single class.
6. John L. Drew and Kevin J. Laughlin further declare under penalty of
perjury under the laws of the State of California that they have read the
foregoing certificate and know the contents thereof and that the same is true of
their own knowledge.
Executed in Sunnyvale, California on December 28, 1998.
/s/ John L. Drew
------------------------------------------
John L. Drew,
President and Chief Executive Officer
/s/ Kevin J. Laughlin
------------------------------------------
Kevin J. Laughlin, Secretary
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INTERNATIONAL NETWORK SERVICES, INC.
(A DELAWARE CORPORATION)
OFFICERS' CERTIFICATE
John L. Drew and Kevin J. Laughlin certify that:
1. They are the President and the Secretary, respectively, of International
Network Services, 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. There are authorized 150,000,000
shares of Common Stock and 5,000,000 shares of Preferred Stock. The Preferred
Stock is undesignated as to series, rights, preferences or restrictions.
3. There are 100 shares of Common Stock outstanding and entitled to vote on
the Agreement and Plan of Merger (the "MERGER AGREEMENT") attached hereto. 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 100% of the shares outstanding and entitled to
vote on the Merger Agreement.
5. The percentage vote required was more than 50% of the votes entitled to
be cast by holders of outstanding shares of Common Stock.
6. John L. Drew and Kevin J. Laughlin further declare under penalty of
perjury under the laws of the State of Delaware that they have read the
foregoing certificate and know the contents thereof and that the same is true of
their own knowledge.
Executed in Sunnyvale, California on December 28, 1998.
/s/ John L. Drew
------------------------------------------
John L. Drew,
President and Chief Executive Officer
/s/ Kevin J. Laughlin
------------------------------------------
Kevin J. Laughlin, Secretary
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