Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated November 4, 2005 (the
"Agreement") is entered into by and between Adept Technology, Inc., a Delaware
corporation ("Adept-Delaware"), and Adept Technology, Inc., a California
corporation ("Adept-California"). Adept-Delaware and Adept-California are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. Adept-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 20,000,000
shares, $0.001 par value, of which 19,000,000 shares are designated "Common
Stock," and 1,000,000 shares are designated "Preferred Stock." All of the
outstanding shares of Common stock of Adept-Delaware are held by
Adept-California. The shares of Preferred Stock of Adept-Delaware are unissued
and are undesignated as to series, rights, preferences, privileges or
restrictions.
B. Adept-California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 15,000,000
shares, no par value, of which 14,000,000 shares are designated "Common Stock,"
and 1,000,000 shares are designated "Preferred Stock." The shares of Preferred
Stock of Adept-California are unissued and are undesignated as to series,
rights, preferences, privileges or restrictions.
C. The Board of Directors of Adept-California has determined that, for
the purpose of effecting the reincorporation of Adept-California in the State of
Delaware, it is advisable and in the best interests of Adept-California and its
shareholders that Adept-California merge with and into Adept-Delaware upon the
terms and conditions herein provided.
D. The Board of Directors of Adept-California has adopted resolutions
approving this Merger Agreement and the transactions contemplated hereby. A
majority of the shareholders of Adept-California have approved this Merger
Agreement and the transactions contemplated hereby.
E. The Board of Directors of Adept-Delaware has adopted resolutions
approving this Merger Agreement and the transactions contemplated hereby. The
sole shareholder of Adept-Delaware has approved this Merger Agreement and the
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Adept-Delaware and Adept-California hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
AGREEMENT
1. MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law (the "DGCL") and the California General
Corporation Law (the "CGCL"), Adept-California shall be merged with and into
Adept-Delaware (the "Merger"); the separate existence of Adept-California shall
cease and Adept-Delaware shall survive the Merger and shall continue to be
governed by the laws of the State of Delaware; Adept-Delaware shall be, and is
herein sometimes referred to as, the "Surviving Corporation;" and the name of
the Surviving Corporation shall be Adept Technology, Inc.
1.2 Filing and Effectiveness. The Merger shall become effective when
the following actions have been completed:
(a) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the DGCL
shall have been filed with the Secretary of State of the State of
Delaware; and
(b) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the CGCL
shall have been filed with the Secretary of State of the State of
California.
The date and time when the Merger shall become effective is herein
referred to as the "Effective Date".
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of Adept-California shall cease and Adept-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
Adept-California's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Adept-California
in the manner as more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations 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 Adept-California in the same manner as if
Adept-Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the DGCL and the CGCL.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
Adept-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.
2.2 Bylaws. The Bylaws of Adept-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.
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2.3 Directors and Officers. The directors and officers of
Adept-California immediately prior to the Effective Date of the Merger shall be
the directors and officers of the Surviving Corporation until their respective
successors shall have been duly elected and qualified or until such date as is
otherwise provided by law, or by the Certificate of Incorporation and Bylaws of
the Surviving Corporation.
3. MANNER OF CONVERSION OF STOCK
3.1 Adept-California Common Stock. Upon the Effective Date of the
Merger, each share of Adept-California Common Stock, no par value, 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 changed and converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $0.001 par value, of the Surviving
Corporation.
3.2 Adept-California Options, Convertible Securities and Stock Purchase
Rights. Upon the Effective Date of the Merger, the Surviving Corporation shall
assume and continue the equity incentive plans and the options granted pursuant
to thereto (including without limitation, the 2005 Equity Incentive Plan, 2004
Director Option Plan, 2003 Stock Option Plan, 2001 Stock Option Plan, 1998
Employee Stock Purchase Plan, and options granted pursuant to the 1995 Director
Option Plan and 1993 Stock Plan) and all other employee benefit plans of
Adept-California. Each outstanding and unexercised option or other right to
purchase or security convertible into Adept-California Common Stock including,
without limitation, the warrants to purchase Adept Common Stock, and convertible
notes, 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 Adept-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 Adept-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 Adept-California. A number of shares of the Surviving
Corporation's Common Stock shall be reserved for issuance upon the exercise of
options, stock purchase rights or convertible securities equal to the number of
shares of Adept-California Common Stock so reserved immediately prior to the
Effective Date of the Merger.
3.3 Adept-Delaware Common Stock. Upon the Effective Date of the Merger,
each share of Common Stock, $0.001 par value, of Adept-Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by Adept-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
Adept-California Common Stock may, at such stockholder's option, surrender the
same for cancellation to Mellon Investor Services LLC 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 such holders' shares of
Adept-California Common Stock were converted as herein provided. Unless and
until so surrendered, each outstanding certificate theretofore representing
shares of Adept-California Common Stock shall be deemed for all purposes to
represent the number of whole shares of the Surviving Corporation's Common Stock
into which such shares of Adept-California Common Stock were converted in the
Merger.
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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 Adept-California so converted and given
in exchange therefor, unless otherwise determined by the Board of Directors of
the Surviving Corporation in compliance with applicable laws.
If any certificate for shares of Adept-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 that the person
requesting such transfer pay to Adept-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 Adept-Delaware that such tax has been paid
or is not payable.
4. GENERAL
4.1 Covenants of Adept-Delaware. Adept-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 irrevocably appoint an
agent for service of process as required under the provisions of
Section 2105 of the CGCL;
(b) File any and all documents with the California Franchise
Tax Board necessary for the assumption by Adept-Delaware of all of the
franchise tax liabilities of Adept-California; and
(c) 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
Adept-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Adept-California such deeds and other instruments, and
there shall be taken or caused to be taken by Adept-Delaware and
Adept-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
Adept-Delaware the title to and possession of all the property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of
Adept-California and otherwise to carry out the purposes of this Agreement, and
the officers and directors of Adept-Delaware are fully authorized in the name
and on behalf of Adept-California or otherwise to take any and all such action
and to execute and deliver any and all such deeds and other instruments.
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4.3 Abandonment. At any time before the filing of this Agreement with
the Secretary of State of the State of Delaware, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either Adept-California or Adept-Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of
Adept-California or by the sole stockholder of Adept-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 (or
certificate in lieu thereof) with the Secretaries of State of the States of
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the shareholders of either Constituent Corporation
shall not: (1) 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, (2) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger, or (3) 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 of shares or series thereof of
such Constituent Corporation.
4.5 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.
4.6 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.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of Adept-Delaware and Adept-California,
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
ADEPT TECHNOLOGY, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
ADEPT TECHNOLOGY, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
[Signature Page to Agreement and Plan of Merger]
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