EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
ENCAD, INC.
(A DELAWARE CORPORATION)
AND
ENCAD, INC.
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of January 5, 1998 (this
"Agreement") is between ENCAD, Inc., a Delaware corporation ("ENCAD
Delaware"), and ENCAD, Inc., a California corporation ("ENCAD California").
ENCAD Delaware and ENCAD California are sometimes referred to herein as the
"Constituent Corporations."
R E C I T A L S
- - - - - - - -
A. ENCAD Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has a total authorized capital stock of
Sixty-Five Million (65,000,000) shares. The number of shares of Preferred
Stock authorized to be issued is Five Million (5,000,000), par value $.001.
No shares of Preferred Stock were outstanding as of the date hereof and prior
to giving effect to the transactions contemplated hereby. The number of
shares of Common Stock authorized to be issued is Sixty Million (60,000,000),
par value $.001. As of the date hereof, and before giving effect to the
transactions contemplated hereby, One Thousand (1,000) shares of Common Stock
were issued and outstanding, all of which were held by ENCAD California.
B. ENCAD California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital stock of
Twenty Million (20,000,000) shares. The number of shares of Preferred Stock
authorized to be issued is Five Million (5,000,000), no par value, none of which
are currently outstanding. The number of shares of Common Stock authorized to
be issued is Fifteen Million (15,000,000), no par value.
C. The Board of Directors of ENCAD California has determined that, for
the purpose of effecting the reincorporation of ENCAD California in the State of
Delaware, it is advisable and in the best interests of ENCAD California that
ENCAD California merge with and into ENCAD Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of ENCAD Delaware and ENCAD
California approved this Agreement and directed that this Agreement be
submitted to a vote of their respective stockholders and executed by the
undersigned officers. Upon submission to their respective stockholders, this
merger was duly approved by both a majority of the shareholders of ENCAD
California and the sole stockholder of ENCAD Delaware in accordance with the
requirements of the General Corporation Law of the State of California and
the Delaware General Corporation Law.
E. ENCAD Delaware is a wholly-owned subsidiary of ENCAD California.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, ENCAD Delaware and ENCAD 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 General Corporation Law of the State of
California, ENCAD California shall be merged with and into ENCAD Delaware (the
"Merger"), the separate existence of ENCAD California shall cease and ENCAD
Delaware shall be, and is herein sometimes referred to as, the "Surviving
Corporation," and the name of the Surviving Corporation shall be ENCAD, Inc.
1.2 FILING AND EFFECTIVENESS. The Merger shall not become effective until
the following actions shall be completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the stockholders of ENCAD California and the sole stockholder
of ENCAD Delaware in accordance with the requirements of the Delaware
General Corporation Law and the General Corporation Law of the State of
California;
(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 or an executed 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; and
(d) An executed counterpart of this Agreement, a Certificate of
Ownership or any other document filed with the Secretary of State of the
State of Delaware pursuant to section (c) above, shall have been filed with
the Secretary of State of the State of California.
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 ENCAD California shall cease and ENCAD 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
ENCAD California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of ENCAD California
in the manner more fully set forth in Section 259 of the General Corporation Law
of the State of Delaware, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of ENCAD 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 ENCAD California
in the same manner as if ENCAD Delaware had itself incurred them, all as more
fully provided under the applicable provisions of the General Corporation Law of
the State of Delaware and the General Corporation Law of the State of
California.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
ENCAD 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 ENCAD 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 ENCAD Delaware
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, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
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III. MANNER OF CONVERSION OF STOCK
3.1 ENCAD CALIFORNIA COMMON SHARES. Upon the Effective Date of the
Merger, each share of ENCAD 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 share
or any other person, be converted into and exchanged for one (1) fully paid
and nonassessable share of Common Stock, par value $.001 per share, of the
Surviving Corporation.
3.2 ENCAD CALIFORNIA OPTIONS AND STOCK PURCHASE RIGHTS. Upon the
Effective Date of the Merger, the Surviving Corporation shall assume and
continue the employee benefits plans (including the 401(k) Plan, the Deferred
Compensation Plan, the 1993 Employee Stock Purchase Plan and the 1993 Stock
Option/Stock Issuance Plan) and all other employee benefit plans of ENCAD
California. Each outstanding and unexercised option, or other right to
purchase ENCAD California Common Stock shall become an option, or right to
purchase the Surviving Corporation's Common Stock on the basis of one (1)
share of the Surviving Corporation's Common Stock for each share of ENCAD
California Common Stock issuable pursuant to any such option, or stock
purchase right on the same terms and conditions and at an exercise price per
share equal to the exercise price per share applicable to any such ENCAD
California option or stock purchase right at the Effective Date of the
Merger. There are no options or purchase rights for Preferred Stock of ENCAD
California.
A number of shares of the Surviving Corporation's Common Stock shall
be reserved for issuance upon the exercise of options and stock purchase rights
equal to the number of shares of ENCAD California Common Stock so reserved
immediately prior to the Effective Date of the Merger.
3.3 ENCAD DELAWARE COMMON STOCK. Upon the Effective Date of the
Merger, each share of Common Stock, par value $.001 per share, of ENCAD
Delaware issued and outstanding immediately prior thereto shall, by virtue of
the Merger and without any action by ENCAD Delaware, the holder of such
shares or any other person, be cancelled 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
ENCAD California 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 the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate theretofore
representing shares of ENCAD 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 ENCAD 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 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 ENCAD
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, or other such additional legends as agreed
upon by the holder and the Surviving Corporation.
If any certificate for shares of ENCAD 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 the Exchange Agent any transfer or other taxes payable by
reason of issuance of such new certificate in a name other
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than that of the registered holder of the certificate surrendered or
establish to the satisfaction of ENCAD Delaware that such tax has been paid
or is not payable.
IV. GENERAL
4.1 COVENANTS OF ENCAD DELAWARE. ENCAD Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
4.1.1 Qualify to do business as a foreign corporation in the
State of California.
4.1.2 File any and all documents with the California Franchise
Tax Board necessary for the assumption by ENCAD Delaware of all of the
franchise tax liabilities of ENCAD California.
4.1.3 Take such other actions as may be required by the General
Corporation Law of the State of California.
4.2 FURTHER ASSURANCES. From time to time, as and when required by
ENCAD Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of ENCAD California such deeds and other instruments, and
there shall be taken or caused to be taken by it 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 ENCAD Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of ENCAD California and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of ENCAD Delaware are fully authorized in the name and on behalf of
ENCAD 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 ENCAD California or of
ENCAD Delaware, or of both, notwithstanding the approval of this Agreement by
the shareholders of ENCAD California.
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 Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Agreement by the stockholder or 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 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 0000 Xxxxxx Xxxxxx, Xxxx of
Wilmington and the registered agent of the Surviving Corporation at such
address is The Corporation Trust Company.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 0000 Xxxxxxxxxxx
Xxxxx Xxxx, Xxx Xxxxx, XX 00000, and copies thereof will be furnished to any
stockholder or shareholder 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
General Corporation Law of the State of California.
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.
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of ENCAD, Inc., a Delaware corporation,
and ENCAD, Inc., a California corporation, is hereby executed on behalf of
each of such two corporations and attested by their respective officers
thereunto duly authorized.
ENCAD, INC., a Delaware corporation
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx,
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ XXXXXX X. XXXXX
---------------------------
Xxxxxx X. Xxxxx,
Secretary
ENCAD, INC., a California corporation
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx,
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ XXXXXX X. XXXXX
---------------------------
Xxxxxx X. Xxxxx,
Secretary
[COUNTERPART SIGNATURE PAGE
TO AGREEMENT AND PLAN OF MERGER]
