EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BETWEEN
IDENTIX INCORPORATED,
a California corporation
and
IDENTIX INCORPORATED,
a Delaware corporation
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is dated as of December
16, 1998 between Identix Incorporated, a California corporation ("Identix
California"), and Identix Incorporated, a Delaware corporation ("Identix
Delaware"), a wholly owned subsidiary of Identix California.
BACKGROUND
A. Identix California is a corporation duly organized, validly existing
and in good standing under the laws of the State of California and, on the date
of this Agreement, has authority to issue 52,000,000 shares consisting of
50,000,000 shares of Common Stock, no par value, and 2,000,000 shares of
Preferred Stock, no par value, of which 25,426,211 shares of Common Stock and no
shares of Preferred Stock are issued and outstanding.
B. Identix Delaware is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and, on the date of
this Agreement, has authority to issue 52,000,000 shares, consisting of
50,000,000 shares of Common Stock, $0.01 par value, and 2,000,000 shares of
Preferred Stock, $0.01 par value, of which one share of Common Stock is issued
and outstanding and owned by Identix California and no shares of Preferred Stock
are issued and outstanding.
C. The Board of Directors of each of Identix California and Identix
Delaware have determined that it is advisable and in the best interests of each
of such corporations that Identix California merge into Identix Delaware upon
the terms and subject to the conditions set forth in this Agreement, for the
purpose of effecting the reincorporation of Identix California in the State of
Delaware and have, by resolutions duly adopted, approved this Agreement and
directed that it be submitted to a vote of their respective stockholders and
executed by the undersigned officers.
THE PARTIES AGREE AS FOLLOWS:
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ARTICLE I
DEFINITIONS
When used in this Agreement (and in any Exhibit in which such terms are not
otherwise defined) the following terms shall have the following meanings:
"California Common Stock" shall mean shares of Common Stock, no par value,
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of Identix California.
"California Preferred Stock" shall mean shares of Preferred Stock, no par
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value, of Identix California.
"Certificate of Merger" shall mean the Certificate of Merger of Identix
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California into Identix Delaware to be filed with the Secretary of State of the
State of Delaware
in substantially the form attached hereto as Exhibit 2.1.
"Delaware Common Stock" shall mean shares of Common Stock, $0.01 par value,
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of Identix Delaware.
"Delaware Preferred Stock" shall mean shares of Preferred Stock, $0.01 par
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value, of Identix Delaware.
"Effective Time" shall mean the time when the Certificate of Merger is
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filed with the Secretary of State of the State of Delaware and the Merger
becomes effective.
"Merger" shall mean the merger of Identix California into Identix Delaware.
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"Shareholders' Meeting" shall mean the annual meeting of shareholders of
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Identix California held on October 29, 1998 to approve and adopt this Agreement,
among other things.
"Surviving Corporation" shall mean Identix Delaware from and after the
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Effective Time.
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ARTICLE II
MERGER
2.1 Merger. At the Effective Time, the Merger shall become effective under
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Section 252 of the Delaware General Corporation Law and Section 1108(d) of the
California General Corporation Law, and Identix California shall merge into
Identix Delaware, the separate existence of Identix California shall cease and
Identix Delaware shall continue in existence as the surviving corporation under
the Delaware General Corporation Law.
2.2 Filings. On or prior to the Effective Time, Identix California and
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Identix Delaware shall cause:
(a) an executed counterpart of the Certificate of Merger to be filed with
the
Secretary of State of California; and
(b) the Certificate of Merger to be filed with the Secretary of State of
Delaware.
2.3 Effects of the Merger. At the Effective Time:
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(a) the separate existence of Identix California shall cease and Identix
California shall be merged into Identix Delaware;
(b) the Certificate of Incorporation of Identix Delaware shall continue as
the Certificate of Incorporation of the Surviving Corporation;
(c) the Bylaws of Identix Delaware shall continue as the Bylaws of the
Surviving Corporation;
(d) each officer and director of Identix California in office immediately
prior to the Effective Time shall serve in the same capacity as an officer or
director of the surviving Corporation immediately after the Effective Time;
(e) each share of California Common Stock outstanding immediately prior to
the Effective Time shall be converted into one share of Delaware Common Stock
pursuant to Article III;
(f) without further transfer, act, or deed, the separate existence of
Identix California shall cease and the Surviving Corporation shall possess all
the rights,
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privileges, powers and franchises, and shall be subject to all the restrictions,
disabilities and duties, of Identix California; and all property, real, personal
and mixed, and all debts due to Identix California on whatever account, as well
as stock subscriptions and all other things belonging to Identix California
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest of Identix
California shall be thereafter as effectually the property of the Surviving
Corporation as they were of Identix California, and the title to any real estate
vested by deed or otherwise in Identix California shall not revert or be in any
way impaired by reason of the Merger; and all rights of creditors of Identix
California and all liens upon any property of Identix California shall be
preserved unimpaired and all debts, liabilities and duties of Identix California
shall attach to the Surviving Corporation and may be enforced against it to the
same extent as if such debts, liabilities and duties had been incurred or
contracted by it.
2.4 Further Assurances. Identix California agrees that if, at any time
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after the Effective Time, the Surviving Corporation shall consider or be advised
that any further deeds, assignments or assurances are necessary or desirable to
vest, perfect or confirm in the Surviving Corporation title to any property or
rights of Identix California, the Surviving Corporation and its officers and
directors may execute and deliver all such deeds, assignments and assurances and
do all other things necessary or desirable to vest, perfect or confirm title to
such property or rights in the Surviving Corporation and otherwise to carry out
the purposes of this Agreement, in the name of Identix California or otherwise.
ARTICLE III
CONVERSION OF STOCK
3.1 Conversion of Stock. At the Effective Time, the stock of Identix
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California shall be converted into stock of Identix Delaware, as follows:
(a) each share of California Common Stock issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into one
share of Delaware Common Stock; and
(b) each share of Delaware Common Stock issued and outstanding immediately
prior to the Effective Time shall be canceled and retired and no stock shall be
issued in the Merger in respect thereof.
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3.2 Stock Certificates. At and after the Effective Time, all of the
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outstanding certificates which immediately prior to the Effective Time
represented shares of California Common Stock shall be deemed for all purposes
to evidence ownership of, and to represent, shares of Delaware Common Stock into
which the shares of California Common Stock formerly represented by such
certificates have been converted as provided in this Agreement. The registered
owner on the books and records of Identix Delaware or its transfer agent of any
outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to Identix Delaware or its
transfer agents, have and be entitled to exercise any voting and other rights
with respect to, and to receive any dividends and other distributions upon, the
shares of Delaware Common Stock evidenced by such outstanding certificate as
provided above.
3.3 Stock Options. Each right or option to purchase shares of California
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Common Stock granted under the Identix Incorporated Equity Incentive Plan, the
Identix Incorporated 1992 Employee Stock Option Plan, the Identix Incorporated
Nonemployee Directors Stock Option Plan, the Identix Incorporated 1983 Incentive
Stock Option Plan, the ANADAC, Inc. 1984 Incentive Stock Option Plan, the
Identix Incorporated Employee Stock Purchase Plan and the Identix Incorporated
Foreign Subsidiary Stock Purchase Plan (collectively, the "Plans") which is
outstanding immediately prior to the Effective Time, shall by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and become an option to purchase the same number of shares of Delaware
Common Stock at the same option price per share, and upon the same terms and
subject to the same conditions as in effect at the Effective Time. The same
number of shares of Delaware Common Stock shall be reserved for purposes of said
Plans as is equal to the number of shares of California Common Stock so reserved
as of the Effective Time. As of the Effective Time, Identix Delaware hereby
assumes the Plans and all obligations of Identix California under the Plans
including the outstanding options or awards or portions thereof granted pursuant
to the Plans.
3.4 Validity of Delaware Common Stock. All shares of Delaware Common Stock
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into which California Common Stock are to be converted pursuant to the Merger
shall not be subject to any statutory or contractual preemptive rights, shall be
validly issued, fully paid and nonassessable and shall be issued in full
satisfaction of all rights pertaining to such California Common Stock.
3.5 Rights of Former Holders. From and after the Effective Time, no
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holder of certificates which evidenced California Common Stock immediately prior
to the Effective Time shall have any rights with respect to the shares formerly
evidenced by those certificates, other than to receive the shares of Delaware
Common Stock into which such California Common Stock shall have been converted
pursuant to the Merger.
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ARTICLE IV
GENERAL
4.1 Consents. Each of Identix California and Identix Delaware shall use
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its best efforts to obtain the consent and approval of each person (other than
shareholders of Identix California in their capacities as such) whose consent or
approval shall be required in order to permit consummation of the Merger.
4.2 Governmental Authorizations. Each of Identix California and Identix
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Delaware 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.
4.3 Waiver and Amendment. This Agreement may be amended by action of the
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Board of Directors of each of Identix California and Identix Delaware without
action by the stockholders of the parties, except that (a) any amendment to
Section 3.1, (b) any amendment changing the terms, rights, powers or preferences
of the Delaware Common Stock, or (c) any amendment altering any terms of this
Agreement if such alteration would adversely affect the holders of California
Common Stock or Delaware Common Stock must be approved by a majority of the
voting power of the outstanding California Common Stock.
4.4 Termination. This Agreement may be terminated and the Merger and
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other transactions provided for by this Agreement abandoned at any time prior to
the Effective Time, whether before or after adoption and approval of this
Agreement at the Shareholders' Meeting, by action of the Board of Directors of
Identix California if the Board determines that the consummation of the
transactions contemplated by this Agreement would not, for any reason, be in the
best interests of Identix California and its shareholders.
4.5 Entire Agreement. This Agreement (including any exhibits), contains
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the entire agreement among the parties with respect to the Merger and supersedes
all prior and concurrent arrangements, letters of intent or understandings
relating to the Merger.
4.6 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be an original, but all of which when taken
together shall constitute one and the same agreement. This Agreement shall
become effective when one or more counterparts has been signed by each of the
parties and delivered to each of the other parties.
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4.7 Headings. The article, section and paragraph headings in this
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Agreement have been inserted for identification and reference and shall not by
themselves determine the meaning or interpretation of any provision of this
Agreement.
4.8 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware and, so far as applicable, the
merger provisions of the California General Corporation Law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
IDENTIX INCORPORATED,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
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By: /s/ Xxxxx X. Xxxxxxxx
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Title: Executive Vice President
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IDENTIX INCORPORATED,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
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By: /s/ Xxxxx X. Xxxxxxxx
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Title: Executive Vice President
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