EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered
into as of this 24th day of April, 1998 by and between Network Computing
Devices, Inc., a California corporation ("NCD California"), and Network
Computing Devices, Inc., Delaware, a Delaware corporation ("NCD Delaware").
RECITALS
WHEREAS, NCD Delaware is a corporation duly organized and existing under
the laws of the State of Delaware;
WHEREAS, NCD California is a corporation duly organized and existing
under the laws of the State of California;
WHEREAS, on the date of this Merger Agreement, NCD Delaware has
authority to issue 1,000 shares of Common Stock, par value $.001 per share
(the "NCD Delaware Common Stock"), of which 1000 shares are issued and
outstanding and owned by NCD California;
WHEREAS, as of April 21, 1998, the record date of the 1998 Annual
Meeting of Shareholders (the "Annual Meeting"), NCD California has
authority to issue (i) 30,000,000 shares of Common Stock (the "NCD
California Common Stock"), of which 17,136,049 shares are issued and
outstanding and (ii) 3,000,000 shares of undesignated Preferred Stock, of
which no shares are issued and outstanding;
WHEREAS, the respective Boards of Directors for NCD Delaware and NCD
California have determined that, for the purpose of effecting the
reincorporation of NCD California in the State of Delaware, it is advisable
and to the advantage of said two corporations and their shareholders that NCD
California merge with and into NCD Delaware upon the terms and conditions
herein provided; and
WHEREAS, the respective Boards of Directors of NCD Delaware and NCD
California, the shareholders of NCD California, and the sole stockholder of
NCD Delaware have adopted and approved this Merger Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, NCD California and NCD Delaware hereby agree to merge as
follows:
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1. MERGER. NCD California shall be merged with and into NCD
Delaware, and NCD Delaware shall survive the merger ("Merger"), effective
upon the date when this Merger Agreement is made effective in accordance with
applicable law (the "Effective Date").
2. GOVERNING DOCUMENTS. The Certificate of Incorporation of NCD
Delaware shall be amended and restated as in the form attached hereto as
XXXXXXXX X-0, and shall be the Certificate of Incorporation of the surviving
corporation. The Bylaws of NCD Delaware shall be amended and restated as in
the form attached hereto as APPENDIX A-2 and shall be the Bylaws of the
surviving corporation.
3. DIRECTORS AND OFFICERS. The directors and officers of NCD
California shall become the directors and officers of NCD Delaware upon the
Effective Date.
4. SUCCESSION. On the Effective Date, NCD Delaware shall succeed to
NCD California in the manner of and as more fully set forth in Section 259 of
the General Corporation Law of the State of Delaware.
5. FURTHER ASSURANCES. From time to time, as and when required by
NCD Delaware or by its successors and assigns, there shall be executed and
delivered on behalf of NCD California such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other
action, as shall be appropriate or necessary in order to vest, perfect or
confirm, of record or otherwise, in NCD Delaware the title to and possession
of all the property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of NCD California, and otherwise to carry
out the purposes of this Merger Agreement and the officers and directors of
NCD Delaware are fully authorized in the name and on behalf of NCD California
or otherwise to take any and all such action and to execute and deliver any
and all such deeds and other instruments.
6. STOCK OF NCD CALIFORNIA. Upon the Effective Date, by virtue of
the Merger and without any action on the part of the holder thereof, each
share of NCD California Common Stock outstanding immediately prior thereto
shall be changed and converted into one fully paid and nonassessable share of
NCD Delaware Common Stock.
7. STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of NCD
California stock shall be deemed for all purposes to evidence ownership of
and to represent the shares of NCD Delaware stock into which the shares of
NCD California stock represented by such certificates have been converted as
herein provided. The registered owner on the books and records of NCD
Delaware or its transfer agent of any such outstanding stock certificate
shall, until such certificate shall have been surrendered for transfer or
otherwise accounted for to NCD Delaware or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of NCD Delaware
stock evidenced by such outstanding certificate as above provided.
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8. OPTIONS. Upon the Effective Date, each outstanding option or
other right to purchase shares of NCD California stock, including those
options granted under the 1989 Stock Option Plan (the "1989 Plan"), the
1994 Outside Directors' Stock Option Plan (the "Directors' Plan") and the
1992 Employee Stock Purchase Plan (the "Purchase Plan") of NCD California,
shall be converted into and become an option or right to purchase the same
number of shares of NCD Delaware stock at a price per share equal to the
exercise price of the option or right to purchase NCD California stock and
upon the same terms and subject to the same conditions as set forth in the
1989 Plan, the Directors' Plan and the Purchase Plan, respectively, and other
agreements entered into by NCD California pertaining to such options or
rights. A number of shares of NCD Delaware stock shall be reserved for
purposes of such options and rights equal to the number of shares of NCD
California stock so reserved as of the Effective Date. As of the Effective
Date, NCD Delaware shall assume all obligations of NCD California under
agreements pertaining to such options and rights, including the 1989 Plan and
the Directors' Plan, and the outstanding options or other rights, or portions
thereof, granted pursuant thereto.
9. OTHER EMPLOYEE BENEFIT PLANS. As of the Effective Date, NCD
Delaware hereby assumes all obligations of NCD California under any and all
employee benefit plans in effect as of said date or with respect to which
employee rights or accrued benefits are outstanding as of said date.
10. OUTSTANDING COMMON STOCK OF NCD DELAWARE. Forthwith upon the
Effective Date, the One thousand (1,000) shares of NCD Delaware Common Stock
presently issued and outstanding in the name of NCD California shall be
canceled and retired and resume the status of authorized and unissued shares
of NCD Delaware Common Stock, and no shares of NCD Delaware Common Stock or
other securities of NCD Delaware shall be issued in respect thereof.
11. COVENANTS OF NCD DELAWARE. NCD Delaware covenants and agrees
that it will, on or before the Effective Date:
a. Qualify to do business as a foreign corporation in the
State of California, and in all other states in which NCD California is so
qualified and in which the failure so to qualify would have a material
adverse impact on the business or financial condition of NCD Delaware. In
connection therewith, NCD Delaware shall irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California Corporations Code and under applicable provisions of state law in
other states in which qualification is required hereunder.
b. File any and all documents with the California Franchise
Tax Board necessary to the assumption by NCD Delaware of all of the franchise
tax liabilities of NCD California.
12. BOOK ENTRIES. As of the Effective Date, entries shall be made
upon the books of NCD Delaware in accordance with the following:
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a. The assets and liabilities of NCD California shall be
recorded at the amounts at which they were carried on the books of NCD
California immediately prior to the Effective Date, with appropriate
adjustments to reflect the retirement of the one thousand (1,000) shares of
NCD Delaware Common Stock presently issued and outstanding.
b. There shall be credited to the capital stock of NCD
Delaware the aggregate amount of the par value of all shares of NCD Delaware
stock resulting from the conversion of the outstanding California Common
Stock pursuant to the Merger.
c. There shall be credited to the capital surplus account of
NCD Delaware the aggregate of the amounts shown in the capital stock and
capital surplus accounts of NCD California immediately prior to the Effective
Date, less the amount credited to the common stock account of NCD Delaware
pursuant to Paragraph (b) above.
d. There shall be credited to the retained earnings account
of NCD Delaware an amount equal to that carried in the retained earning
account of NCD California immediately prior to the Effective Date.
13. CONDITIONS. It shall be a condition precedent to the
consummation of the Merger and the other transactions contemplated by this
Merger Agreement that (i) the shares of Delaware Common Stock to be issued by
NCD Delaware shall, upon official notice of issuance, be listed on the Nasdaq
National Market prior to or on the Effective Date and (ii) the shareholders
of NCD California approve the Merger.
14. AMENDMENT. At any time before or after approval and adoption by
the shareholders of NCD California, this Merger Agreement may be amended in
any manner as may be determined in the judgment of the respective Boards of
Directors of NCD Delaware and NCD California to be necessary, desirable or
expedient in order to clarify the intention of the parties hereto or to
effect or facilitate the purposes and intent of this Merger Agreement.
15. ABANDONMENT. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either NCD California or NCD Delaware or both, notwithstanding
approval of this Merger Agreement by the sole stockholder of NCD Delaware and
the shareholders of NCD California.
16. COUNTERPARTS. In order to facilitate the filing and recording
of this Merger Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by resolution of the Board of Directors of NCD California and NCD
Delaware, is hereby executed on behalf of each of said two corporations by
their respective officers thereunto duly authorized.
Network Computing Devices, Inc., Delaware,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXXXX
------------------------
Xxxxxx X. Xxxxxxxxxx,
President and Chief Executive Officer
ATTEST:
/s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx, Secretary
Network Computing Devices, Inc., a
California corporation
By: /s/ XXXXXX X. XXXXXXXXXX
------------------------
Xxxxxx X. Xxxxxxxxxx,
President and Chief Executive Officer
ATTEST:
/s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx, Secretary
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