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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
by and between
eMAGIN CORPORATION
a Nevada corporation
and
eMAGIN CORPORATION
a Delaware corporation
Dated as of May [__], 2001
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TABLE OF CONTENTS
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ARTICLE I
MERGER .......................................................................3
Section 1.1. Merger.................................................3
Section 1.2. Filing and Effectiveness...............................3
Section 1.3. Effect of the Merger...................................3
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.....................................4
Section 2.1. Certificate of Incorporation...........................4
Section 2.2. By-Laws................................................4
Section 2.3. Directors And Officers.................................4
ARTICLE III
MANNER OF CONVERSION OF STOCK.................................................5
Section 3.1. Emagin-Nevada Common Stock.............................5
Section 3.2. Emagin-Delaware Common Stock...........................5
Section 3.3. Exchange Of Certificates...............................5
ARTICLE IV
CONDITIONS....................................................................6
Section 4.1. Conditions to Obligations of eMagin-Delaware...........6
Section 4.2. Conditions To Obligations Of Emagin-Nevada.............6
ARTICLE V
GENERAL.......................................................................7
Section 5.1. Further Assurances.....................................7
Section 5.2. Covenants of eMagin-Delaware...........................7
Section 5.3. Abandonment............................................7
Section 5.4. Amendment..............................................7
Section 5.5. Registered Office......................................7
Section 5.6. Agreement..............................................8
Section 5.7. Governing Law..........................................8
Section 5.8. Counterparts...........................................8
(i)
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of May ___, 2001 (the
"Agreement") is entered into by and between eMagin Corporation, a Nevada
corporation ("eMagin-Nevada ") with its principal address at 0000 Xxxxx 00,
Xxxxxxxx Xxxxxxxx, Xxx Xxxx 00000, and eMagin Corporation, a Delaware
corporation ("eMagin-Delaware") with its principal address at 0000 Xxxxx 00,
Xxxxxxxx Xxxxxxxx, Xxx Xxxx 00000. eMagin-Delaware and eMagin-Nevada are
sometimes referred to herein as the "Constituent Corporations."
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, eMagin-Nevada is a corporation duly organized and existing
under the laws of the State of Nevada and has an authorized capital of
76,350,000 shares of common stock, $0.001 par value. As of the date hereof,
25,069,143 shares of eMagin-Nevada common stock were issued and outstanding and
no shares of preferred stock were issued and outstanding.
WHEREAS, eMagin-Delaware is a corporation duly organized and existing
under the laws of the State of Delaware and has an authorized capital of
110,000,000 shares, consisting of 100,000,000 shares of common stock, par value
$.001 per share and 10,000,000 shares of series preferred stock, par value $.001
per share. As of the date hereof, 1000 shares of eMagin-Delaware common stock
were issued and outstanding, all of which are held by eMagin-Nevada and no
shares of series preferred stock were issued and outstanding.
WHEREAS, the Boards of Directors of each of eMagin-Nevada and
eMagin-Delaware have determined that it is advisable and in the best interests
of each of eMagin-Nevada and eMagin-Delaware and their respective stockholders
that eMagin-Nevada merge with and into eMagin-Delaware upon the terms and
conditions herein provided for the purpose of effecting the reincorporation of
eMagin-Nevada in the State of Delaware.
WHEREAS, the Boards of Directors of eMagin-Nevada and eMagin-Delaware
have, by appropriate resolutions, approved and adopted this Agreement and
directed that it be submitted to the stockholders of eMagin-Nevada and
eMagin-Delaware, respectively, for adoption, in each case with a recommendation
that the stockholders vote in favor of the approval of this Agreement and the
Merger.
WHEREAS, the Board of Directors of eMagin-Nevada, acting on behalf of
eMagin-Nevada in its capacity as sole stockholder of eMagin-Delaware, by
appropriate resolutions duly authorized, has approved and adopted this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, eMagin-Delaware and eMagin-Nevada hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
(ii)
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ARTICLE I
MERGER
Section 1.1. Merger. In accordance with the provisions of this
Agreement, the Delaware General Corporation Law and the Nevada Revised Statutes,
at the Effective Time (as defined below) eMagin-Nevada shall be merged with and
into eMagin-Delaware (the "Merger"), the separate existence of eMagin-Nevada
shall cease and eMagin-Delaware shall survive the Merger and shall continue to
be governed by the laws of the State of Delaware, and eMagin-Delaware shall be,
and is herein sometimes referred to as, the "Surviving Corporation," and the
name of the Surviving Corporation shall be "eMagin Corporation".
Section 1.2. Filing and Effectiveness. The Merger shall become
effective at the later time (the "Effective Time") of (a) 11:59 p.m., July 16,
2001, and (y) such date and time as the following actions shall have been
completed:
(a) This Agreement and the Merger shall have been adopted and approved
by the stockholders of eMagin-Nevada representing a majority of the shares of
common stock outstanding and entitled to vote in accordance with the
requirements of the Nevada Revised Statutes;
(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;
(c) An executed Certificate of Merger, in a form acceptable to the
Secretary of State of the State of Delaware, shall have been filed with the
State of Delaware; and
(d) An executed Articles of Merger, in a form acceptable to the
Secretary of State of the State of Nevada, shall have been filed with the State
of Nevada.
Section 1.3. Effect of the Merger. Upon the Effective Time of the
Merger, the separate existence of eMagin-Nevada shall cease and eMagin-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
Time of the Merger, (ii) shall be subject to all actions previously taken by its
and eMagin-Nevada's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of eMagin-Nevada 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
Time of the Merger, and (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of eMagin-Nevada in the same manner as if
eMagin-Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the Nevada
Revised Statutes.
(iii)
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ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
Section 2.1. Certificate of Incorporation. The Certificate of
Incorporation of eMagin-Delaware as in effect immediately prior to the Effective
Time 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.
Section 2.2. By-Laws. The By-Laws of eMagin-Delaware as in effect
immediately prior to the Effective Time of the Merger shall continue in full
force and effect as the By-Laws of the Surviving Corporation until duly amended
in accordance with the provisions thereof and applicable law.
Section 2.3. Directors And Officers. The directors and officers of
eMagin-Nevada immediately prior to the Effective Time 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 as otherwise
provided by law, or the Certificate of Incorporation or By-Laws of the Surviving
Corporation. The directors of eMagin-Nevada immediately prior to the Effective
Time of the Merger shall be divided into three classes, with the number of
directors compromising each such class being as nearly equal as possible, and
with each class serving as directors of the Surviving Corporation for rotating
terms commencing at the Effective Time. For greater certainty, if the current
Board of Directors of eMagin-Nevada are re-elected by the eMagin-Nevada
stockholders at the 2001 Annual Meeting, then such Directors shall be divided
into three classes, with each class serving as directors of the Surviving
Corporation for rotating terms commencing at the Effective Time with terms
expiring in 2002, 2003, and 2004.
ARTICLE III
MANNER OF CONVERSION OF STOCK
Section 3.1. Emagin-Nevada Common Stock. Upon the Effective Time of the
Merger, each share of eMagin-Nevada common stock, $0.001 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.
Section 3.2. Emagin-Delaware Common Stock. Upon the Effective Time of
the Merger, each share of common stock, $0.001 par value, of eMagin-Delaware
issued and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by eMagin-Delaware, the holder of such shares or any
other person, be canceled and returned to the status of authorized but unissued
shares.
(iv)
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Section 3.3. Exchange Of Certificates.
(a) After the Effective Time of the Merger, each holder of an
outstanding certificate representing shares of eMagin-Nevada common stock may be
asked to surrender the same for cancellation to an exchange agent, whose name
will be delivered to such holders prior to any requested exchange (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 eMagin-Nevada
common stock were converted as herein provided. Unless and until so surrendered,
each outstanding certificate theretofore representing shares of eMagin-Nevada
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
eMagin-Nevada common stock were converted in the Merger.
(b) 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 in this Article III.
(c) 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
eMagin-Nevada so converted and given in exchange therefor, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws.
(d) If any certificate for shares of eMagin-Delaware common 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 eMagin-Delaware or the Exchange Agent any
transfer or other taxes payable by reason of the 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 eMagin-Delaware that
such tax has been paid or is not payable.
ARTICLE IV
CONDITIONS
Section 4.1. Conditions to Obligations of eMagin-Delaware. The
obligation of eMagin-Delaware to consummate the Merger is subject to the
fulfillment, prior to or at the Effective Time, subject to the provisions of
Section 5.3, of each of the following conditions:
(a) This Agreement shall have been approved by the duly adopted
resolution of the Board of Directors of eMagin-Nevada, acting in its capacity as
sole stockholder of eMagin-Delaware, or by the act of a duly authorized officer
(v)
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of eMagin-Nevada otherwise authorized to vote the shares of stock of
eMagin-Delaware owned by eMagin-Nevada.
(b) All consents, authorizations, orders or approvals of any
governmental commission, board, other regulatory body or any third party
required in connection with the execution, delivery and performance of this
Agreement shall have been obtained.
(c) Any obligations of eMagin-Nevada to be performed pursuant to this
Agreement prior to the Effective Time shall have been performed in all material
respects.
Section 4.2. Conditions To Obligations Of Emagin-Nevada. The obligation
of eMagin-Nevada to consummate the Merger is subject to the fulfillment, prior
to or at the Effective Time, subject to the provisions of Section 5.3, of each
of the following conditions:
(a) This Agreement and the Merger shall have been approved by the
affirmative vote of the holders of at least a majority of the issued and
outstanding shares of stock of eMagin-Nevada having power to vote.
(b) All consents, authorizations, orders or approvals of any
governmental commission, board, other regulatory body or any third party
required in connection with the execution, delivery and performance of this
Agreement shall have been obtained.
(c) Any obligations of eMagin-Delaware to be performed pursuant to this
Agreement prior to the Effective Time shall have been performed in all material
respects.
ARTICLE V
GENERAL
Section 5.1. Further Assurances. From time to time, as and when
required by eMagin-Delaware or by its successors or assigns, there shall be
executed and delivered on behalf of eMagin-Nevada such deeds and other
instruments, and there shall be taken or caused to be taken by eMagin-Delaware
and eMagin-Nevada 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
eMagin Delaware the title to and possession of all the property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of
eMagin-Nevada and otherwise to carry out the purposes of this Agreement, and the
officers and directors of eMagin-Delaware are fully authorized in the name and
on behalf of eMagin-Nevada or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
Section 5.2. Covenants of eMagin-Delaware. eMagin-Delaware covenants
and agrees that it will, on or before the Effective Time of the Merger take such
other actions as may be required by Delaware law or Nevada law to accomplish the
Merger, including appointing an agent for service of process in the State of
Nevada if and to the extent required under provisions of Nevada law.
(vi)
Section 5.3. Abandonment. At any time before the filing of a
Certificate of Merger with the Secretary of State of the State of Delaware and
Articles of Merger with the Secretary of State of the State of Nevada, this
Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either eMagin-Nevada or eMagin-Delaware,
or both, notwithstanding the approval of this Agreement by the stockholders of
eMagin-Nevada or by the sole stockholder of eMagin-Delaware, or by both.
Section 5.4. Amendment. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of
Articles of Merger and a Certificate of Merger with the Secretaries of State of
the States of Nevada and Delaware, respectively, provided that an amendment made
subsequent to the adoption and approval of this Agreement and the Merger by the
stockholders of either Constituent Corporation shall not: (i) 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, (ii) alter or change
any term of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Merger, or (iii) alter or change any of the terms and conditions
of this Agreement, if in the case of clause (ii) or (iii) such alteration or
change would adversely affect the holders of any class of shares or series
thereof of such Constituent Corporation.
Section 5.5. Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at the Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Newcastle, and the
Corporation Trust Company, Inc. is the registered agent of the Surviving
Corporation at such address.
Section 5.6. Agreement. Executed copies of this Agreement will be on
file at the principal place of business of the Surviving Corporation at 0000
Xxxxx 00, Xxxxxxxx Xxxxxxxx, XX 00000, and copies thereof will be furnished to
any stockholder and to any creditor of either Constituent Corporation, upon
request and without cost.
Section 5.7. 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, to the extent applicable, the merger provisions of
the Nevada Revised Statutes.
Section 5.8. 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.
(vii)
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IN WITNESS WHEREOF, this Agreement is hereby executed on behalf of each
of such two corporations and attested by their respective officers thereunto
duly authorized.
eMAGIN CORPORATION, a Delaware corporation
By:
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Name:
Title:
eMAGIN CORPORATION, a Nevada corporation
By:
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Name:
Title:
(viii)
