Exhibit 2.3
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER dated as of November 27, 1996
("PLAN") involves VIEW TECH DELAWARE, INC., a Delaware corporation ("VIEW TECH-
DEL") and VIEW TECH, INC., a California corporation ("VIEW TECH"). View Tech-
Del and View Tech are sometimes referred to herein as the "CONSTITUENT
CORPORATIONS."
RECITALS
--------
A. View Tech-Del is a corporation duly organized and existing under the
laws of the State of Delaware.
B. View Tech is a corporation duly organized and existing under the laws
of the State of California.
C. The authorized capital stock of View Tech-Del consists of Twenty
Million (20,000,000) shares of Common Stock, $.0001 par value per share ("VIEW
TECH-DEL COMMON STOCK"), of which One Thousand (1,000) shares are issued and
outstanding, and Five Million (5,000,000) shares of Preferred Stock, $.0001 par
value per share, of which no shares are issued and outstanding. View Tech is
the sole shareholder of View Tech-Del.
D. The authorized capital stock of View Tech consists of Ten Million
(10,000,000) shares of Common Stock, par value $.01 ("VIEW TECH COMMON STOCK"),
and Five Million shares of Preferred Stock, par value $.01. Three Million,
Three Hundred Ninety-Three Thousand, Four Hundred Thirty-Eight (3,393,438)
shares of View Tech Common Stock are issued and outstanding. There are also
outstanding options for the purchase of One Million, One Hundred Thirty-Nine
Thousand, One Hundred (1,139,100) shares or View Tech Common Stock (the "VIEW
TECH OPTIONS") and warrants covering Eight Hundred Seventy Thousand (870,000)
shares of View Tech Common Stock (the "VIEW TECH WARRANTS").
E. The board of directors of View Tech has determined that, for the
purpose of effecting the reincorporation of View Tech in the State of Delaware,
it is advisable and in the best interests of View Tech that it merge with and
into View Tech-Del upon the terms and conditions herein provided.
F. The respective boards of directors of View Tech and View Tech-Del have
resolved that View Tech be merged under and pursuant to the General Corporation
Law of the State of Delaware and the General Corporation Law of the State of
California into a single corporation existing under the laws of the State of
Delaware.
G. The respective boards of directors of View Tech-Del and View Tech have
approved the merger upon the terms and conditions set forth herein and have
approved this Plan
and the boards of directors of View Tech-Del and View Tech have directed that
this Plan be submitted to a vote of their respective stockholders.
NOW THEREFORE, each Constituent Corporation adopting this Plan agrees as
follows:
1. MERGER
------
1.1 Merger
------
Subject to Paragraph 4.2 below, and in accordance with the provisions
of this Plan, the Delaware General Corporation Law and the California General
Corporation Law, View Tech shall be, at the Effective Date (as defined in
Paragraph 1.2 below), merged with and into View Tech-Del ("MERGER"), and the
separate existence of View Tech shall cease and View Tech-Del shall be the
surviving corporation (the "SURVIVING CORPORATION") and the capital stock of
View Tech-Del shall be the capital stock of the surviving corporation (e.g.,
View Tech-Del Common Stock to become the "SURVIVING CORPORATION'S COMMON
STOCK").
1.2 Filing and Effectiveness
------------------------
The Merger shall become effective when this Plan, together with the
resolution of the Board of Directors of View Tech adopting and approving same,
shall have been filed with the Secretary of State of the State of Delaware (the
"EFFECTIVE DATE OF MERGER").
For purposes of California Law, the Merger shall become effective as to
View Tech on the Effective Date of the Merger, upon such filing in California as
is required by Sections 1108 and 1110 of the General Corporation Law of
California, which filing will be made by View Tech and/or View Tech-Del, as
applicable.
1.3 Certificate of Incorporation
----------------------------
Except for the change of the name of the Surviving Corporation as
provided in this paragraph 1.3, the Certificate of Incorporation of View Tech-
Del as in effect immediately prior to the Effective Date of 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. From and after the Effective Date of Merger, the
Certificate of Incorporation of View Tech-Del shall be amended by deleting
Article FIRST in its entirety and substituting in lieu thereof the following:
"FIRST: The name of this Corporation is View Tech, Inc."
1.4 Bylaws
------
The Bylaws of View Tech-Del as in effect immediately prior to the
Effective Date of 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.
1.5 Agreements
----------
2
All agreements to which View Tech is a party and which are in effect
immediately prior to the Effective Date of Merger shall continue in full force
and effect and shall be assumed in their entirety by the Surviving Corporation
as of the Effective Date of Merger.
1.6 Directors and Officers
----------------------
The directors and officers of View Tech-Del immediately prior to the
Effective Date of Merger shall be the directors and officers of the Surviving
Corporation until their successors shall have been duly elected and qualified or
until otherwise as provided by law, the Certificate of Incorporation of the
Surviving Corporation or the Bylaws of the Surviving Corporation.
1.7 Effect of Merger
----------------
Upon the Effective Date of Merger, the separate existence of View Tech
shall cease and View Tech-Del, 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 Merger, shall be subject to all
actions previously taken by the View Tech board of directors and shall succeed,
without other transfer, to all of the assets, rights, powers and property of
View Tech in the manner as more fully set forth in Section 259 of the Delaware
General Corporation Law, and (ii) shall continue to be subject to all of its
debts, liabilities and obligations as constituted immediately prior to he
Effective Date of Merger and shall succeed, without other transfer, to all of
the debts, liabilities and obligations of View Tech in the same manner as if
View Tech-Del had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the California
General Corporation Law.
2. MANNER OF CONVERSION OF STOCK
-----------------------------
2.1 View Tech Securities
--------------------
Upon the Effective Date of Merger, each share of View Tech Common
Stock, no par value, issued and outstanding immediately prior thereto shall, by
virtue of the Merger and without any action by the holders of such shares or any
other person, be converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $.0001 par value per share, of the
Surviving Corporation, and all View Tech Options and all View Tech Warrants
outstanding immediately prior to the Merger will be assumed by View Tech
Delaware, and will continue to have, and be subject to, the same terms and
conditions of each such option and as set forth in View Tech's employee stock
option plan, if applicable, immediately prior to the Merger, except that such
options and warrants will be exercisable for such number of shares of View Tech
Delaware Common Stock as is equal to the number of shares of View Tech Common
Stock that were issuable upon exercise of such options and warrants immediately
prior to the Merger. No shares of View Tech Preferred Stock are outstanding.
2.2 View Tech-Del Securities
------------------------
Upon the Effective Date of Merger, each share of View Tech-Del Common
Stock, issued and outstanding immediately prior thereto shall, by virtue of the
Merger and without any
3
action by the holder of such shares or any other person, be cancelled and
returned to the status of authorized but unissued shares.
2.3 Exchange of Certificate
-----------------------
After the Effective Date of Merger, each holder of an outstanding
certificate formerly representing shares of View Tech Common Stock may at such
shareholder's option surrender the same for cancellation to the Surviving
Corporation, and each such holder shall be entitled to receive in exchange
therefor a certificate representing the number of shares of the Surviving
Corporation's Common Stock into which the surrendered shares were converted as
herein provided. Until so surrendered, each outstanding certificate theretofore
representing shares of View Tech 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 View Tech were converted in the Merger. The
registered owner on the books and records of the Surviving Corporation of any
such outstanding certificate shall, until such certificate shall have been
surrendered for conversion to the Surviving Corporation, 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 the Surviving Corporation's Common
Stock represented by such outstanding certificate as provided in this paragraph
2.3.
2.4 Legends
-------
Each certificate representing the Surviving Corporation's Common Stock
so issued in the Merger shall bear the same legends, if any, with respect to
restrictions on transferability as the certificates of View Tech so converted
and given in exchange therefor, unless otherwise determined by the board of
directors of the Surviving Corporation in compliance with applicable laws.
2.5 Endorsement of Surrendered Shares
---------------------------------
If any certificate for shares of the Surviving Corporation's 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 party requesting such transfer pay to the Surviving
Corporation any transfer or other taxes payable by reason of the issuance of
such new certificate in the name other than that of the registered holder of the
certificate surrendered, or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not payable.
3. COVENANTS TO BE PERFORMED PRIOR TO EFFECTIVE DATE OF MERGER
-----------------------------------------------------------
3.1 Consents
--------
Each of View Tech and View Tech-Del shall use its best efforts to
obtain the consent and approval of each person whose consent or approval shall
be required in order to permit consummation of the Merger.
4
3.2 Governmental Authorizations
---------------------------
Each of View Tech and View Tech-Del shall cooperate in filing any
necessary reports or other documents with any federal, state, local or foreign
authorities having jurisdiction with respect to the Merger.
4. GENERAL
-------
4.1 Further Assurances
------------------
View Tech-Del and View Tech each covenants and agrees that it will,
before, on or after the Effective Date of Merger, take such other actions as may
be required by the California General Corporation Law and/or the Delaware
General Corporation Law.
4.2 Abandonment
-----------
At any time before the Effective Date of Merger, this Plan may be
terminated and the Merger may be abandoned for any reason whatsoever by the
board of directors of either View Tech or View Tech-Del or both, notwithstanding
the approval of this Plan by the shareholders of View Tech or the stockholders
of View Tech-Del or both.
4.3 Amendment
---------
The boards of directors of the Constituent Corporations may amend this
Plan at any time prior to the filing of this Plan (or certificate in lieu
thereof) with the Secretary of State of the State of Delaware, provided that an
amendment made subsequent to the adoption of the Plan by the stockholders 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) materially 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 Plan if
such alteration or change would adversely affect the holders of any class or
series thereof of such Constituent Corporation.
4.4 Registered Office
-----------------
The registered office of the Surviving Corporation in the State of
Delaware is located at Corporate Trust Center, 0000 Xxxxxx Xxxxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle, Delaware and Corporation Trust Company is the
registered agent of the Surviving Corporation at such address.
4.5 Plan
----
Copies of this Plan will be on file at the principal place of business
of the Surviving Corporation at 000 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, and
copies thereof will be furnished to any stockholder of either Constituent
Corporation, upon request and without cost.
5
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
VIEW TECH, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
The undersigned hereby affirms and acknowledges, under penalties of
perjury, that this instrument is the act and deed of View Tech, Inc. and that
the facts stated herein are true.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
VIEW TECH DELAWARE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
The undersigned hereby affirms and acknowledges, under penalties of
perjury, that this instrument is the act and deed of View Tech Delaware, Inc.
and that the facts stated herein are true.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
6
The undersigned secretary of View Tech, Inc. hereby certifies that this
Plan was adopted and approved by the shareholders of View Tech, Inc. at a
meeting properly noticed and held on November 26, 1996.
/s/ Xxxxxxx X. XxXxx
----------------------
Xxxxxxx X. XxXxx
Secretary
The undersigned secretary of View Tech Delaware, Inc. hereby certifies
that this Plan was adopted and approved by the sole stockholder of View Tech
Delaware, Inc. by written consent dated November 26, 1996.
/s/ Xxxxxxx X. XxXxx
----------------------
Xxxxxxx X. XxXxx
Secretary
