Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF XXXX MEDICAL SYSTEMS, INC.
A DELAWARE CORPORATION,
and
XXXX MEDICAL SYSTEMS, INC.
A CALIFORNIA CORPORATION
This Agreement and Plan of Merger dated as of _____, 2000 (the "Agreement")
is between XXXX Medical Systems, Inc., a California corporation ("XXXX
Medical-California"), and XXXX Medical Systems, Inc., a Delaware corporation
(XXXX Medical-Delaware"). XXXX Medical-Delaware and XXXX Medical-California are
sometimes referred to in this Agreement as the "Constituent Corporations."
RECITALS
A. XXXX Medical-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 45,165,774
shares, 30,000,000 of which are designated "Common Stock," $0.001 par value, and
15,165,774 of which are designated "Preferred Stock," $0.001 par value.
1,241,939 shares of Preferred Stock are designated Series A Preferred Stock;
2,358,709 shares of Preferred Stock are designated Sereis B Preferred Stock;
1,844,671 shares of Preferred Stock are designated Series C Preferred Stock;
375,000 shares of Preferred Stock are designated Series D Preferred Stock; and
9,345,455 shares of Preferred Stock are designated Series E Preferred Stock. As
of _____, 2000, 1,000 shares of XXXX Medical-Delaware Common Stock were issued
and outstanding, all of which are held by XXXX Medical-California, and no shares
of Preferred Stock were issued and outstanding.
B. XXXX Medical-California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital of
45,165,774 shares, 30,000,000 of which are designated "Common Stock," $0.001 par
value, and 15,165,774 of which are designated "Preferred Stock," $0.001 par
value. 1,241,939 shares of Preferred Stock are designated Series A Preferred
Stock; 2,358,709 shares of Preferred Stock are designated Sereis B Preferred
Stock; 1,844,671 shares of Preferred Stock are designated Series C Preferred
Stock; 375,000 shares of Preferred Stock are designated Series D Preferred
Stock; and 9,345,455 shares of Preferred Stock are designated Series E Preferred
Stock. As of _____, 2000, 2,007,370 shares of Common Stock were issued and
outstanding, 1,241,939 shares of Series A Preferred Stock were issued and
outstanding, 2,358,709 shares of Series B Preferred Stock were issued and
outstanding, 1,772,671 shares of Series C Preferred Stock were issued and
outstanding, 375,000 shares of Series D Preferred Stock were issued and
outstanding and 8,550,983 shares of Series E Preferred Stock were issued and
outstanding.
C. The Board of Directors of XXXX Medical-California has determined that,
for the purpose of effecting the reincorporation of XXXX Medical-California in
the State of Delaware, it is advisable and in the best interests of XXXX
Medical-California that XXXX Medical-California
merge with and into XXXX Medical-Delaware upon the terms and conditions provided
in this Agreement.
D. The respective Boards of Directors of XXXX Medical-Delaware and XXXX
Medical-California have approved this Agreement and have directed that this
Agreement be submitted to a vote of their respective stockholders and executed
by the undersigned officers.
AGREEMENT
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In consideration of the mutual agreements and covenants set forth herein,
XXXX Medical-Delaware and XXXX Medical-California hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
1. Merger.
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
XXXX Medical-California shall be merged with and into XXXX Medical-Delaware (the
"Merger"), the separate existence of XXXX Medical-California shall cease and
XXXX Medical-Delaware shall be, and is sometimes referred to below as, the
"Surviving Corporation," and the name of the Surviving Corporation shall be XXXX
Medical Systems, Inc.
1.2 Filing and Effectiveness. The Merger shall become effective upon
completion of the following actions:
(a) Adoption and approval of this Agreement and the Merger by the
stockholders of each Constituent Corporation in accordance with the applicable
requirements of the Delaware General Corporation Law and the California General
Corporation Law;
(b) The satisfaction or waiver of all of the conditions precedent to the
consummation of the Merger as specified in this Agreement; and
(c) The filing with the Secretary of State of Delaware of an executed
Certificate of Merger or an executed counterpart of this Agreement meeting the
requirements of the Delaware General Corporation Law.
The date and time when the Merger becomes effective is referred to in this
Agreement as the "Effective Date of the Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of XXXX Medical-California shall cease and XXXX
Medical-Delaware, as the Surviving Corporation, (a) shall continue to possess
all of its assets, rights, powers and property as constituted immediately prior
to the Effective Date of the Merger, (b) shall be subject to all actions
previously taken by its and XXXX Medical-California's Board of Directors, (c)
shall succeed, without other transfer, to all of the assets, rights, powers and
property of XXXX Medical-California in the manner more fully set forth in
Section 259 of the Delaware General Corporation
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Law, (d) shall continue to be subject to all of the debts, liabilities and
obligations of XXXX Medical-Delaware as constituted immediately prior to the
Effective Date of the Merger, and (e) shall succeed, without other transfer, to
all of the debts, liabilities and obligations of XXXX Medical-California in the
same manner as if XXXX Medical-Delaware 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. Charter Documents, Directors and Officers
2.1 Certificate of Incorporation. The Certificate of Incorporation of XXXX
Medical-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 XXXX Medical-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 XXXX
Medical-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 as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
3. Manner of Conversion of Stock
3.1 XXXX Medical-California Common Stock. Upon the Effective Date of the
Merger, each one share of XXXX Medical-California Common Stock 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 fully paid and
nonassessable share of Common Stock, $0.001 par value, of the Surviving
Corporation. No fractional share interests of the Surviving Corporation shall be
issued. Any fractional share interests to which a holder would otherwise be
entitled shall be aggregated so that no XXXX Medical-California shareholder
shall receive cash in an amount greater than the value of one (1) full share of
XXXX Medical-Delaware Common Stock.
3.2 XXXX Medical-California Preferred Stock. Upon the Effective Date of the
Merger, each share of XXXX Medical-California Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E
Preferred Stock issued and outstanding immediately prior thereto, which shares
are convertible into such number of shares of XXXX Medical-California Common
Stock as set forth in the XXXX Medical-California Articles of Incorporation, as
amended, shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be
converted into and exchanged for one fully paid and non-assessable share of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock
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of the Surviving Corporation, $0.001 par value, respectively, having such
rights, preferences and privileges as set forth in the Certification of
Incorporation of the Surviving Corporation, which shares of Preferred Stock
shall be convertible into the same number of shares of the Surviving
Corporation's Common Stock, $0.001 par value as such share of XXXX
Medical-California Preferred Stock was convertible into shares of XXXX
Medical-California common stock immediately prior to the Effective Date of the
Merger, subject to adjustment pursuant to the terms of the Certificate of
Incorporation of the Surviving Corporation.
3.3 XXXX Medical-California Options, Stock Purchase Rights and Convertible
Securities.
(a) Upon the Effective Date of the Merger, the Surviving Corporation shall
assume the obligations of XXXX Medical-California under XXXX
Medical-California's [199__] Stock Option Plan and all other employee benefit
plans of XXXX Medical-California. Each outstanding and unexercised option, other
right to purchase, or security convertible into, XXXX Medical-California Common
Stock or Preferred Stock (a "Right") shall become, subject to the provisions in
paragraph (c) hereof, an option, right to purchase, or a security convertible
into the Surviving Corporation's Common Stock or Preferred Stock, respectively,
on the basis of one share of the Surviving Corporation's Common Stock or
Preferred Stock, as the case may be, for each one share of XXXX
Medical-California Common Stock or Preferred Stock, issuable pursuant to any
such Right, on the same terms and conditions and at an exercise price equal to
the exercise price applicable to any such XXXX Medical-California Right at the
Effective Date of the Merger. This paragraph 3.3(a) shall not apply to XXXX
Medical-California Common Stock or Preferred Stock. Such Common Stock and
Preferred Stock are subject to paragraph 3.1 and 3.2 hereof , respectively.
(b) A number of shares of the Surviving Corporation's Common Stock and
Preferred Stock shall be reserved for issuance upon the exercise or conversion
of Rights equal to the number of shares of XXXX Medical-California Common Stock
and Preferred Stock so reserved immediately prior to the Effective Date of the
Merger.
(c) The assumed Rights shall not entitle any holder thereof to a fractional
share upon exercise or conversion (unless the holder was entitled to a
fractional interest immediately prior to the Merger). In lieu thereof, any
fractional share interests to which a holder of an assumed Right (other than an
option issued pursuant to XXXX Medical-Delaware's 199__ Stock Option Plan) would
otherwise be entitled upon exercise or conversion shall be aggregated (but only
with other similar Rights which have the same per share terms). To the extent
that after such aggregation, the holder would still be entitled to a fractional
share with respect thereto upon exercise or conversion, the holder shall be
entitled upon the exercise or conversion of all such assumed Rights pursuant to
their terms (as modified herein), to one full share of Common Stock or Preferred
Stock in lieu of such fractional share. With respect to each class of such
similar Rights, no holder will be entitled to more than one full share in lieu
of a fractional share upon exercise or conversion.
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Notwithstanding the foregoing, with respect to options issued under the
XXXX Medical-California 199__ Stock Option Plan that are assumed in the Merger,
the number of shares of Common Stock to which the holder would be otherwise
entitled upon exercise of each such assumed option following the Merger shall be
rounded down to the nearest whole number and the exercise price shall be rounded
up to the nearest whole cent. In addition, no "additional benefits" (within the
meaning of Section 424(a)(2) of the Internal Revenue Code of 1986, as amended)
shall be accorded to the optionees pursuant to the assumption of their options.
3.4 XXXX Medical-Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, $0.001 par value, of XXXX Medical-Delaware
issued and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by XXXX Medical-Delaware, the holder of such shares or
any other person, be canceled and returned to the status of authorized but
unissued shares.
3.5 Exchange of Certificates. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of XXXX
Medical-California Common Stock or Preferred Stock may be asked to surrender the
same for cancellation to an exchange agent, whose name will be delivered to
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 appropriate class and
series of the Surviving Corporation's capital stock into which the surrendered
shares were converted as herein provided. Until so surrendered, each outstanding
certificate theretofore representing shares of XXXX Medical-California capital
stock shall be deemed for all purposes to represent the number of whole shares
of the appropriate class and series of the Surviving Corporation's capital stock
into which such shares of XXXX Medical-California capital 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 capital stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing capital 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 XXXX Medical-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 Surviving Corporation's 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 the issuance
of such new certificate in a name
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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.
4. General
4.1 Covenants of XXXX Medical-Delaware. XXXX Medical-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 irrevocably appoint an agent for service of process as required
under the provisions of Section 2105 of the California General Corporation Law.
(b) File any and all documents with the California Franchise Tax Board
necessary for the assumption by XXXX Medical-Delaware of all of the franchise
tax liabilities of XXXX Medical-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 XXXX
Medical-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of XXXX Medical-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 XXXX Medical-Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of XXXX Medical-California and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of XXXX Medical-Delaware are fully authorized in the name and on
behalf of XXXX Medical-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 XXXX Medical-California or XXXX
Medical-Delaware, or both, notwithstanding the approval of this Agreement by the
shareholders of XXXX Medical-California or by the sole stockholder of XXXX
Medical-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 Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Agreement by the stockholders of either Constituent Corporation shall not: (a)
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, (b) alter
or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger, or (c) alter or change any of the
terms and conditions of this Agreement if such alteration or change
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would adversely affect the holders of any class of shares or series of capital
stock of such Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving Corporation
in the State of Delaware is located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of
New Castle, Delaware. The Corporation Trust Company is the registered agent of
the Surviving Corporation at such address.
4.6 FIRPTA Notification.
(a) On the Effective Date of the Merger, XXXX Medical-California shall
deliver to XXXX Medical-Delaware, as agent for the shareholders of XXXX
Medical-California, a properly executed statement (the "Statement") in
substantially the form attached hereto as Exhibit A. XXXX Medical-Delaware shall
retain the Statement for a period of not less than seven years and shall, upon
request, provide a copy thereof to any person that was a shareholder of XXXX
Medical-California immediately prior to the Merger. In consequence of the
approval of the Merger by the shareholders of XXXX Medical-California, (i) such
shareholders shall be considered to have requested that the Statement be
delivered to XXXX Medical-Delaware as their agent and (ii) XXXX Medical-Delaware
shall be considered to have received a copy of the Statement at the request of
the XXXX Medical-California shareholders for purposes of satisfying XXXX
Medical-Delaware's obligations under Treasury Regulation Section 1.1445-2(c)(3).
(b) XXXX Medical-California shall deliver to the Internal Revenue Service a
notice regarding the Statement in accordance with the requirements of Treasury
Regulation Section 1.897-2(h)(2).
4.7 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxx, XX 00000 and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
4.8 Governing Law; Jurisdiction. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of California, without giving effect to principles of conflicts of
law. Each of the parties to this Agreement consents to the exclusive
jurisdiction and venue of the courts of the state and federal courts of Santa
Xxxxx County, California.
4.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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The undersigned authorized representatives of the Constituent Corporation
have executed and acknowledged this Agreement as of the date first set forth
above.
XXXX Medical Systems, Inc., a Delaware
corporation
-----------------------------------------
Xxxxx Xxxxxxx
President and Chief Executive Officer
XXXX Medical Systems, Inc., a California
corporation
-----------------------------------------
Xxxxx Xxxxxxx
President and Chief Executive Officer
EXHIBIT A -- FORM OF FIRPTA CERTIFICATE
_____, 2000
Assistant Commissioner (International)
Director, Office of Compliance
OP:I:C:E:666
000 X'Xxxxxx Xxxxx Xxxxx, X.X.
COMSAT Building
Washington, D.C. 20024
NOTICE TO THE INTERNAL REVENUE SERVICE OF XXXX MEDICAL SYSTEMS, INC. (A
CALIFORNIA CORPORATION) UNITED STATES REAL PROPERTY HOLDING CORPORATION
STATUS UNDER TREASURY REGULATION 1.897-2(H)(2)
Dear Sir:
1. This Notice is being filed by XXXX Medical Systems, Inc.-California,
("Target") pursuant to section 1.897-2(h)(2) of the Treasury Regulations
promulgated under the Internal Revenue Code of 1986, as amended (the "Code").
2. The undersigned, on behalf of Target hereby declares that stock of
Target is not a United States real property interest within the meaning of
section 897 of the Code because Target is not and has not been a United States
real property holding corporation as that term is defined in section 897(c) (2)
of the Code during the applicable period specified in section 897(c) (1) (A)
(ii) of the Code.
3. Target's United States taxpayer identifying number is: [_________]
4. Target's address is:
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
5. In connection with the acquisition of Target by XXXX Medical Systems,
Inc.- Delaware ("Acquiror"), the undersigned provided the attached statement to
Acquiror declaring that an interest in Target is not a United States real
property interest. The statement was voluntarily provided in response to a
request from the transferee, Acquiror under Regulation 1. 1445-2(c) (3) (i).
Acquiror's United States taxpayer identifying number is:[____________]
Acquiror's address is:
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
6. No supplemental statements pursuant to Treasury Regulations section
1.897-2(h) (5) are required to be filed herewith.
7. Under penalties of perjury the undersigned declares that he has examined
this certification, and the attachment hereto, and to the best of his knowledge
and belief they are true, correct and complete. The undersigned further declares
that he is a responsible officer and that he has authority to sign this document
on behalf of Target.
A copy of the statement provided pursuant to Treasury Regulation
ss.ss.1.897-2(h)(2) and 1.1445-2(c)(3)(i) is attached.
___________________________
Xxxxx Xxxxxxx, President
XXXX Medical Systems, Inc.
A California Corporation
OFFICERS' CERTIFICATE OF APPROVAL OF THE MERGER
Xxxxx Xxxxxxx and Xxxx Xxxxx certify that:
1. They are the President and Chief Executive Officer and the Secretary,
respectively, of XXXX Medical Systems, Inc. a corporation organized under the
laws of the State of California.
2. The corporation has authorized two classes of stock, designated "Common
Stock" and "Preferred Stock," respectively.
3. There were [2,007,370] shares of Common Stock and [14,299,302] shares of
Preferred Stock outstanding as of the record date (the "Record Date") and
entitled to vote by written consent of the shareholders whereby the Agreement
and Plan of Merger attached hereto (the "Merger Agreement") was approved.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class and series of
stock which equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the outstanding shares
of Common Stock and more than 50% of the outstanding shares of Preferred Stock,
voting as separate classes.
Xxxxx Xxxxxxx and Xxxx Xxxxx further declare under penalty of perjury under
the laws of the States of California and Delaware that each has read the
foregoing certificate and knows the contents thereof and that the same is true
and correct of his own knowledge.
Executed in ____________________, California on _____, 2000.
--------------------------------
Xxxxx Xxxxxxx, President and
Chief Executive Officer
--------------------------------
Xxxx Xxxxx, Secretary
XXXX Medical Systems, Inc.
A Delaware Corporation
OFFICERS' CERTIFICATE OF APPROVAL OF MERGER
Xxxxx Xxxxxxx and Xxxx Xxxxx certify that:
1. They are the President and Chief Executive Officer and the Secretary,
respectively, of XXXX Medical Systems, Inc., a corporation organized under the
laws of the State of Delaware.
2. The corporation has authorized two classes of stock, designated "Common
Stock" and "Preferred Stock," respectively.
3. There are 1,000 shares of Common Stock outstanding and entitled to vote
on the Agreement and Plan of Merger attached hereto (the "Merger Agreement").
There are no shares of Preferred Stock outstanding.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class and series of
stock which equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes entitled to
be cast by holders of outstanding shares of Common Stock.
Xxxxx Xxxxxxx and Xxxx Xxxxx further declare under penalty of perjury under
the laws of the States of Delaware and California that each has read the
foregoing certificate and knows the contents thereof and that the same is true
and correct of each's own knowledge.
Executed in ________________________, California, _____, 2000.
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Xxxxx Xxxxxxx, President and
Chief Executive Officer
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Xxxx Xxxxx, Secretary
