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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of May 30,
2000, by and among OTI Acquisition Corp., a Delaware corporation ("OTI
Acquisition Corp."), OptiMark Technologies, Inc., a Delaware corporation ("OTI"
or the "Surviving Corporation"), and OptiMark Holdings, Inc., a Delaware
corporation ("Holding Company");
WITNESSETH:
WHEREAS, OTI wishes to reorganize its corporate structure into a holding
company structure consisting of a holding company and wholly-owned direct
subsidiary of such holding company; and
WHEREAS, in connection with this reorganization: (i) OTI has formed
Holding Company as a direct wholly-owned subsidiary of OTI; and (ii) Holding
Company has formed OTI Acquisition Corp., a Delaware corporation, as a direct
wholly-owned subsidiary of Holding Company; and
WHEREAS, OTI intends to merge with OTI Acquisition Corp. pursuant to
Section 251(g) of the Delaware General Corporation Law (the "DGCL"), with OTI as
the survivor of such merger (the "Merger"), and with stockholders of OTI
receiving shares of Holding Company in exchange for their shares in OTI; and
WHEREAS, as a result of such merger, OTI would become a direct
wholly-owned subsidiary of Holding Company;
NOW, THEREFORE, in consideration and furtherance of the foregoing, the
parties hereto agree as follows:
ARTICLE I.
THE MERGER
SECTION 1.1 Merger of OTI Acquisition Corp. with OTI. Pursuant to Section
25l(g) of the DGCL, and in accordance with and subject to the terms and
conditions of this Agreement, at the Effective Time (as hereinafter defined) the
following shall be deemed to occur simultaneously:
(a) OTI shall merge with OTI Acquisition Corp., with OTI to be
the surviving corporation of the Merger, such that as a result of the Merger,
OTI shall become a direct wholly-owned subsidiary of Holding Company;
(b) In connection with the Merger, the name of the Surviving
Corporation shall become "OptiMark US Equities, Inc.";
(c) The stockholders of OTI shall receive, in the manner set
forth in Article IV
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hereof, shares of capital stock of Holding Company in exchange for their shares
of capital stock of OTI and as a result of such exchange shall become
stockholders of Holding Company;
(d) In connection with the Merger, the Certificate of
Incorporation of Holding Company shall be amended to change the name of the
Holding Company to "OptiMark Technologies, Inc.";
(e) The separate existence of OTI Acquisition Corp. as a
Delaware corporation shall terminate, and at that time and to the fullest extent
provided under the laws of the State of Delaware: (i) the Surviving Corporation
shall, without further act or deed, possess all of the rights, privileges,
powers and franchises of public and private nature, and be subject to all of the
restrictions, disabilities and duties, of OTI Acquisition Corp.; (ii) the
Surviving Corporation shall, without further act or deed, be vested with all
property, real, personal and mixed, and all debts due to OTI Acquisition Corp.
on whatever account; (iii) all property, rights, privileges, powers and
franchises, and all and every other interest, of OTI Acquisition Corp. shall be
the property of the Surviving Corporation; (iv) all rights of creditors and all
liens upon any property of OTI Acquisition Corp. shall be preserved unimpaired,
and all debts, liabilities and duties of OTI Acquisition Corp. 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; and
(v) the Merger shall have all such other effects as set forth in Section 259 of
the DGCL;
(f) Holding Company, the sole stockholder of OTI Acquisition
Corp. immediately prior to the Effective Time, will receive, in the manner set
forth in Section 4.5 hereof, capital stock of the Surviving Corporation in
exchange for the capital stock of OTI Acquisition Corp. held by it; and
(g) The shares of Holding Company held by the Surviving
Corporation shall be canceled without payment of any consideration for such
cancellation.
SECTION 1.2 Effective Time. The Merger shall be effective for all
purposes at the time (the "Effective Time") (i) when all conditions precedent to
the Merger set forth in Sections 3.1 and 3.2 hereof have been satisfied and (ii)
when the Secretary or Assistant Secretary of the Surviving Corporation shall
have certified this Agreement in the manner required by Section 251(g) of the
DGCL and filed this Agreement as so certified with the Secretary of State of the
State of Delaware in accordance with Section 103 of the DGCL.
ARTICLE II.
CONSTITUENT CORPORATIONS AND HOLDING COMPANY
SECTION 2.1 OTI.
(a) Organization. OTI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Capitalization of OTI. Immediately prior to the Effective Time,
OTI will have authorized capital consisting of:
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(i) 150,000,000 shares of Common Stock, $0.01 par value per share;
and
(ii) 40,000,000 shares of Preferred Stock, $1.00 par value per
share.
(c) Stock Options and Plans. OTI has entered into, adopted or is
otherwise subject to certain agreements and arrangements, including warrants,
stock grants, options and rights, and compensation plans and agreements,
pursuant to which it is or may be obligated to issue additional shares of its
capital stock or that otherwise relate to the rights of holders of capital stock
of OTI (all such warrants, stock grants, options, rights, and compensation plans
and agreements being referred to herein as the "Plans"). Each of the Plans
permits the Merger and the transactions contemplated by Section 4.3 hereof.
Copies of the Plans have been provided to Holding Company.
SECTION 2.2 OTI Acquisition Corp.
(a) Organization. OTI Acquisition Corp. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) Capitalization of OTI Acquisition Corp. OTI Acquisition Corp.
has authorized capital consisting of 1,000 shares of Common Stock, $0.0l par
value per share, 1,000 shares of which have been issued and are outstanding. OTI
Acquisition Corp. has no options, warrants or other rights to purchase or
convert any shares of its Common Stock pursuant to which it is obligated to
issue or sell additional shares of its Common Stock.
(c) Ownership of Capital Stock of OTI Acquisition Corp. All of the
issued and outstanding shares of Common Stock of OTI Acquisition Corp. are owned
by Holding Company.
SECTION 2.3 Holding Company.
(a) Organization. Holding Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Certificate of Incorporation and Bylaws of Holding Company are, and
immediately prior to the Effective Time will be, identical to the Amended and
Restated Certificate of Incorporation and the Amended and Restated Bylaws of OTI
as in effect immediately prior to the Merger, except for such variations as are
specifically required by and permitted pursuant to Section 251(g) of the DGCL.
(b) Capitalization of Holding Company. Holding Company has
authorized capital consisting of:
(i) 150,000,000 shares of Common Stock, $0.01 par value
per share, 1,000 of which shares are issued and
outstanding; and
(ii) 40,000,000 shares of Preferred Stock, $0.01 par
value per share, none of which shares are issued
and outstanding.
The Common Stock and the Preferred Stock of Holding Company have the same
designations, rights, powers and preferences, and the qualifications,
limitations and restrictions thereof, as the Common Stock and the Preferred
Stock of OTI immediately prior to the Effective Time. Holding Company has no
options, warrants or other rights to purchase or convert any shares of its
Common
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Stock pursuant to which it is obligated to issue or sell additional shares of
its Common Stock.
(c) Ownership of Capital Stock of Holding Company. All of the
issued and outstanding shares of Common Stock of Holding Company are owned by
OTI.
ARTICLE III.
CONDITIONS PRECEDENT TO MERGER, TERMINATION OF AGREEMENT
SECTION 3.1 Action by Directors. This Agreement shall be submitted for
approval by the respective Boards of Directors of each of OTI Acquisition Corp.
and OTI as required by Section 251(b) of the DGCL, and by the Board of Directors
of the Holding Company. As required by Section 25l(g) of the DGCL, any approval
of the Merger by the Board of Directors of OTI shall include a determination by
the Board of Directors of OTI that the stockholders of OTI shall not recognize a
gain or loss for United States federal income tax purposes as a result of the
Merger.
SECTION 3.2 Filing of Certified Agreement. Upon satisfaction of all
conditions precedent set forth in Section 3.1 hereof, the Secretary or Assistant
Secretary of the Surviving Corporation shall certify this Agreement in the
manner required by Section 251(g) of the DGCL and shall file this Agreement as
so certified with the Secretary of State of the State of Delaware in accordance
with Section 103 of the DGCL.
SECTION 3.3 Expenses. OTI shall bear all expenses associated with the
consummation of this Merger.
SECTION 3.4 Termination. At any time prior to the Effective Time, this
Agreement may be terminated and the Merger abandoned by OTI by appropriate
resolution of OTI's Board of Directors.
ARTICLE IV.
CONVERSION OF SHARES OF CONSTITUENT CORPORATIONS
SECTION 4.1 Conversion of Outstanding Shares of Common Stock of OTI. At
the Effective Time, each share or fraction of a share of Common Stock of OTI
that is issued and outstanding or held in its treasury immediately prior to the
Effective Time shall, without further act or deed by OTI or its stockholders, be
converted into and exchanged for a share or equal fraction of a share of Common
Stock of Holding Company. Shares of Common Stock of Holding Company into which
shares of Common Stock of OTI are so converted shall be represented by stock
certificates previously representing shares of Common Stock of OTI.
SECTION 4.2 Conversion of Outstanding Shares of Preferred Stock of OTI.
At the Effective Time, each share or fraction of a share of each class of
Preferred Stock of OTI that is issued and outstanding or held in its treasury
immediately prior to the Effective Time shall, without further act or deed by
OTI or its stockholders, be converted into and exchanged for a share or equal
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fraction of a share of the same such class of Preferred Stock of Holding
Company. Shares of Preferred Stock of Holding Company into which shares of
Preferred Stock of OTI are so converted shall be represented by stock
certificates previously representing shares of Preferred Stock of OTI.
SECTION 4.3 Assumption of OTI Obligations Relating to Capital Stock.
Immediately prior to the Effective Time, OTI was a party to or subject to
certain agreements and arrangements, including warrants, stock grants, options
and rights, and compensation plans and agreements, pursuant to which parties
thereto or beneficiaries thereof acquired, or acquired certain rights to
acquire, shares of capital stock of OTI. As of the Effective Time, Holding
Company shall adopt, assume and agree to be bound by each and every Plan, and
any right to acquire a share or fraction of a share of capital stock of OTI
under any such Plan shall, without further act or deed by OTI or its
stockholders, be converted into a right to acquire a share or equal fraction of
a share of capital stock of Holding Company pursuant to such Plan.
SECTION 4.4 Assumption of Other OTI Obligations. Immediately prior to the
Effective Time, OTI was a party to or subject to certain agreements and
arrangements other than the Plans, which are listed on Exhibit A hereto (the
"OTI Agreements"). As of the Effective Time, Holding Company shall adopt, assume
and agree to be bound by the OTI Agreements.
SECTION 4.5 Surrender and Cancellation of Shares of OTI Acquisition Corp.
At the Effective Time, each share of Common Stock of OTI Acquisition Corp. that
is issued and outstanding immediately prior to the Effective Time shall be
converted into a share of Common Stock of the Surviving Corporation and the
certificates evidencing ownership of all issued and outstanding shares of Common
Stock of OTI Acquisition Corp. shall be surrendered to the Secretary of the
Surviving Corporation in exchange for shares of Common Stock of the Surviving
Corporation into which they are converted pursuant to this Section 4.5.
SECTION 4.6 Surrender and Cancellation of OTI 's Shares in Holding
Company. At the Effective Time, OTI 's 1,000 shares of Common Stock of Holding
Company owned immediately prior to the Effective Time shall be canceled without
payment of any consideration for such cancellation.
ARTICLE V.
OFFICERS AND DIRECTORS OF
HOLDING COMPANY AND SURVIVING CORPORATION
SECTION 5.1 Holding Company. The directors of OTI holding office
immediately prior to the Effective Time shall serve in the same capacities as
the directors of the Holding Company until the next annual meeting of
stockholders of Holding Company or until their successors shall have been
elected and qualified. The officers of Holding Company immediately prior to the
Effective Time shall remain the officers of Holding Company until their
successors or any additional officers shall have been appointed.
SECTION 5.2 Surviving Corporation. The officers of OTI holding office
immediately prior to the Effective Time shall serve in the same capacities as
officers of the Surviving
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Corporation and Phillip J. Riese, James G. Rickards and Robert T. Colgan shall
serve as the sole directors of the Surviving Corporation until the next annual
meeting of stockholders or until their successors have been elected and
qualified.
ARTICLE VI.
ARTICLES OF INCORPORATION AND BYLAWS OF
HOLDING COMPANY AND SURVIVING CORPORATION
SECTION 6.1 Holding Company. The Certificate of Incorporation and Bylaws
of Holding Company as in effect immediately prior to the Effective Time shall be
the Certificate of Incorporation and Bylaws of Holding Company following the
Merger, provided that the Certificate of Incorporation shall be amended
effective as of the Effective Time to change the name of Holding Company to
"OptiMark Technologies, Inc.".
SECTION 6.2 Surviving Corporation. The Amended and Restated Certificate
of Incorporation, and the Amended and Restated Bylaws of OTI as in effect
immediately prior to the Effective Time shall, pursuant to Section 251(g) of the
DGCL, be the Certificate of Incorporation and Bylaws of the Surviving
Corporation following the Merger; provided, however, that the Certificate of
Incorporation of the Surviving Corporation shall be amended as set forth below:
(i) Article 1 shall be amended in its entirety as follows:
"1. Name. The name of the Corporation is OptiMark US
Equities Inc."
(ii) Article 6 shall be amended to read in its entirety as
follows:
"6. Shares of Stock. The total number of shares of all
classes of stock which the Corporation shall have the authority to issue is
1,000 shares of Common Stock, $0.01 par value per share. "
(iii) Article Fifteen shall be added and shall read as follows:
"15. Stockholder Voting. Any act or transaction by or
involving the Corporation that requires for its adoption the approval of its
stockholders pursuant to the General Corporation Law of Delaware or the
provisions of this Certificate of Incorporation shall pursuant to Section 251(g)
of the General Corporation Law of Delaware also require the approval of the
stockholders of OptiMark Technologies, Inc. (and any successor by merger) by the
same vote as is required pursuant to the General Corporation Law of Delaware or
the provisions of this Certificate of Incorporation, as the case may be."
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IN WITNESS WHEREOF, each of OTI Acquisition Corp., OTI and Holding
Company have caused this Agreement to be signed by their respective officers
thereunto duly authorized as of the day and year first above written.
OptiMark Technologies, Inc.
By: /s/ James G. Rickards
Title: Senior Vice President,
General Counsel and
Secretary
OTI Acquisition Corp.
By: /s/ James G. Rickards
Title: President and Secretary
OptiMark Holdings, Inc.
By: /s/ James G. Rickards
Title: Secretary
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EXHIBIT A
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CERTIFICATE OF OPTIMARK TECHNOLOGIES, INC.
(UNDER SECTION 251 OF THE
GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE)
The undersigned, being Secretary of OptiMark Technologies, Inc., a
corporation organized under the laws of the State of Delaware ("OTI"), hereby
states that the Agreement and Plan of Merger to which this Certificate is
attached was adopted by OTI by action of its Board of Directors and without any
vote of its stockholders pursuant to subsection (g) of Section 251 of the
Delaware General Corporation Law (the "DGCL ")and in accordance with such
subsection, the undersigned hereby certifies as follows:
1. The Agreement and Plan of Merger has been adopted pursuant
to subsection (g) of Section 251 of the DGCL; and
2. The conditions specified in the first sentence of
subsection (g) of Section 251 of the DGCL have been
satisfied.
IN WITNESS WHEREOF, this certificate has been subscribed this __ day of
May, 2000, by the undersigned who affirms that the statements made herein are
true under the penalties of perjury.
OptiMark Technologies, Inc.
By:
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Name: James G. Rickards
Title: Senior Vice President,
General Counsel and
Secretary
