MERGER AGREEMENT
This Merger Agreement (the "MERGER AGREEMENT") is entered into as of
August 31, 2000 by and among Monolithic System Technology, Inc., a California
corporation ("MOSYS CALIFORNIA"), and Monolithic System Technology, Inc., a
Delaware corporation and a wholly-owned subsidiary of MoSys California ("MOSYS
DELAWARE" and, together with MoSys California, the "PARTIES").
RECITALS
MoSys Delaware is a newly incorporated corporation, without business
or substantial assets or liabilities, formed and organized for the purpose of
acting as the surviving corporation of the merger of MoSys California into
MoSys Delaware (the "MERGER"). The purpose of the Merger is to reincorporate
MoSys California as a Delaware corporation, and the Merger is intended to
qualify as a mere change in identity, form, or place of organization under
section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended.
AGREEMENT
NOW, THEREFORE, the parties do hereby agree as follows:
ARTICLE I
THE CONSTITUENT CORPORATIONS
1.1 MOSYS DELAWARE. MoSys Delaware is incorporated under the laws of
the State of Delaware and will be the surviving corporation in the Merger.
MoSys Delaware is authorized to issue an aggregate of 120,000,000 shares of
Common Stock, $0.01 par value per share ("MOSYS DELAWARE COMMON STOCK"), of
which 100 shares are outstanding as of the date of this Agreement, and
20,000,000 shares of Preferred Stock, $0.01 par value per share, of which
500,000 shares are designated Series A Preferred Stock, 1,000,000 shares are
designated Series B Preferred Stock, 1,010,000 shares are designated Series C
Preferred Stock, 300,000 shares are designated Series D Preferred Stock,
264,487 shares are designated Series E Preferred Stock, 1,224,552 shares are
designated Series F Preferred Stock, 290,000 shares are designated Series F-1
Preferred Stock, 1,343,433 shares are designated Series G Preferred Stock,
and 650,000 shares are designated Series H Preferred Stock (collectively,
with the Series A through Series G Preferred Stock, the "MOSYS DELAWARE
PREFERRED STOCK").
1.2 MOSYS CALIFORNIA. MoSys California is incorporated under the
laws of the State of California and will be the disappearing corporation in
the Merger. MoSys California is authorized to issue an aggregate of
30,000,000 shares of Common Stock, no par value ("MOSYS CALIFORNIA COMMON
STOCK"), of which 10,111,382 shares are outstanding as of the date of this
Agreement; and 9,500,000 shares of Preferred Stock, no par value, of which
500,000 shares are designated Series A Preferred Stock, of which 500,000
shares are outstanding as of the date of this Agreement; 1,000,000 shares are
designated Series B Preferred Stock, of which 1,000,000 shares are
outstanding as of the date of this Agreement; 1,010,000 shares are designated
Series C Preferred Stock, of which 1,010,000 shares are outstanding as of the
date of this Agreement;
300,000 shares are designated Series D Preferred Stock, of which 300,000
shares are outstanding as of the date of this Agreement; 264,487 shares are
designated Series E Preferred Stock, of which 264,487 shares are outstanding
as of the date of this Agreement; 1,224,552 shares are designated Series F
Preferred Stock, of which 1,224,552 shares are outstanding as of the date of
this Agreement; 290,000 shares are designated Series F-1 Preferred Stock, of
which 290,000 shares are outstanding as of the date of this Agreement;
1,343,433 shares are designated Series G Preferred Stock, of which 1,343,433
shares are outstanding as of the date of this Agreement; and 650,000 shares
are designated Series H Preferred Stock, of which 650,000 shares are
outstanding as of the date of this Agreement (collectively, with the Series A
through Series G Preferred Stock, the "MOSYS CALIFORNIA PREFERRED STOCK").
ARTICLE II
THE MERGER
2.1 CONDITIONS TO CLOSING OF THE MERGER. Completion and
effectiveness of the Merger shall not occur unless and until all of the
following conditions have been met:
(a) All necessary approvals of the Merger by shareholders of MoSys
California and the stockholder of MoSys Delaware shall have been obtained.
(b) MoSys California shall be and remain in good standing in the
State of California, and MoSys Delaware shall be and remain in good standing
in the State of Delaware.
2.2 CLOSING OF MERGER. As soon as all conditions to the Merger have
been satisfied, this Merger Agreement, along with certificates meeting the
requirements of the California General Corporation Law and the Delaware
General Corporation Law, shall be filed with the Secretary of State of
California and the Secretary of State of Delaware. At the time such filings
are both effected, or, if later, at the date specified pursuant to Section
103(d) of the Delaware General Corporation Law, the Merger shall become
effective ("EFFECTIVE TIME").
2.3 EFFECT OF MERGER.
(a) At the Effective Time, MoSys California shall be merged
into MoSys Delaware and the separate corporate existence of MoSys California
shall thereupon cease. MoSys Delaware shall be the surviving corporation in
the Merger (the "SURVIVING CORPORATION") and the separate corporate existence
of MoSys Delaware, with all its purposes, objects, rights, privileges,
powers, immunities and franchises, shall continue unaffected and unimpaired
by the Merger. The officers and directors of Mosys Delaware shall be the
officers and directors of the Surviving Corporation.
(b) MoSys Delaware, as the Surviving Corporation, shall
succeed to all of the rights, privileges, powers, immunities and franchises
of MoSys California, all of the properties and assets of MoSys California and
all of the debts, choses in action and other interests due or belonging to
MoSys California and shall be subject to, and responsible for, all of the
debts, liabilities and obligations of MoSys California with the effect set
forth in the California General Corporation Law and the Delaware General
Corporation Law, as applicable.
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2.4 2000 EMPLOYEE STOCK OPTION PLAN. At the Effective Time, the 2000
Employee Stock Option Plan of MoSys Delaware in the form attached as EXHIBIT
A will become effective.
2.5 2000 EMPLOYEE STOCK PURCHASE PLAN. At the Effective Time, the
2000 Employee Stock Purchase Plan of MoSys Delaware in the form attached as
EXHIBIT B will become effective.
2.6 INDEMNITY AGREEMENT. At the Effective Time, Mosys Delaware will
enter into the Indemnity Agreement in the form attached as EXHIBIT C with
each officer and director and certain key employees of Mosys Delaware.
ARTICLE III
CERTIFICATE OF INCORPORATION AND BYLAWS
OF THE SURVIVING CORPORATION
3.1 CERTIFICATE OF INCORPORATION. At the Effective Time, the
Certificate of Incorporation of MoSys Delaware, as the Surviving Corporation,
shall continue in the form in effect immediately prior to the Effective Time,
as attached as EXHIBIT D.
3.2 BYLAWS. At the Effective Time, the Bylaws of MoSys Delaware, as
the Surviving Corporation, shall continue in the form in effect immediately
prior to the Effective Time, as attached as EXHIBIT E.
ARTICLE IV
MANNER AND BASIS OF CONVERTING CAPITAL STOCK AND SECURITIES
4.1 CONVERSION OF STOCK AND OPTIONS. At the Effective Time:
(a) Each share of MoSys California Common Stock issued and
outstanding immediately prior to the Effective Time 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 MoSys Delaware Common Stock.
(b) Each share of MoSys California Series A Preferred Stock
issued and outstanding immediately prior to the Effective Time 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 MoSys Delaware Series
A Preferred Stock.
(c) Each share of MoSys California Series B Preferred Stock
issued and outstanding immediately prior to the Effective Time 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 MoSys Delaware Series
B Preferred Stock.
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(d) Each share of MoSys California Series C Preferred Stock
issued and outstanding immediately prior to the Effective Time 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 MoSys Delaware Series
C Preferred Stock.
(e) Each share of MoSys California Series D Preferred Stock
issued and outstanding immediately prior to the Effective Time 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 MoSys Delaware Series
D Preferred Stock.
(f) Each share of MoSys California Series E Preferred Stock
issued and outstanding immediately prior to the Effective Time 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 MoSys Delaware Series
E Preferred Stock.
(g) Each share of MoSys California Series F Preferred Stock
issued and outstanding immediately prior to the Effective Time 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 MoSys Delaware Series
F Preferred Stock.
(h) Each share of MoSys California Series F-1 Preferred
Stock issued and outstanding immediately prior to the Effective Time 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 MoSys
Delaware Series F-1 Preferred Stock.
(i) Each share of MoSys California Series G Preferred Stock
issued and outstanding immediately prior to the Effective Time 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 MoSys Delaware Series
G Preferred Stock.
(j) Each share of MoSys California Series H Preferred Stock
issued and outstanding immediately prior to the Effective Time 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 MoSys Delaware Series
H Preferred Stock.
(k) MoSys Delaware, as the Surviving Corporation, shall
assume the stock option plans (including the 1996 Stock Plan and the 1992
Stock Option Plan) and all other employee benefit plans of MoSys California.
Each outstanding and unexercised option or warrant to purchase shares of
MoSys California Common Stock shall become an option or warrant to purchase
MoSys Delaware Common Stock on the basis of one (1) share of MoSys
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Delaware Common Stock for each share of MoSys California Common Stock
issuable pursuant to any such option or warrant on the same terms and
conditions and at an exercise price per share equal to the exercise price per
share applicable to any such MoSys California option or warrant at the
Effective Time. A number of shares of MoSys Delaware Common Stock shall be
reserved for issuance upon the exercise of options and warrants equal to the
number of shares of MoSys California Common Stock so reserved immediately
prior to the Effective Time. Each share of MoSys California Common Stock that
is reserved but unissued under the 1996 Stock Plan and the 1992 Stock Option
Plan shall be canceled.
(l) Each share of MoSys Delaware Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action by MoSys Delaware, the holder of such shares or
any other person, be canceled and returned to the status of authorized but
unissued shares.
4.2 EXCHANGE CERTIFICATES. (a) After the Effective Time, each holder
of an outstanding certificate representing shares of MoSys California Common
Stock or MoSys California Preferred 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 MoSys Delaware Common Stock
or MoSys Delaware Preferred Stock, as the case may be, into which the
surrendered shares were converted as herein provided. Until so surrendered,
each outstanding certificate theretofore representing shares of MoSys
California Common Stock or MoSys California Preferred Stock shall be deemed
for all purposes to represent the number of shares of MoSys Delaware Common
Stock or MoSys Delaware Preferred Stock, as the case may be, into which the
shares of MoSys California Common Stock or MoSys California Preferred Stock
were converted in the Merger.
(b) The registered owner on the books and records of MoSys Delaware
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 MoSys Delaware or the Exchange Agent, have and be
entitled to exercise all voting and other rights with respect to and to
receive dividends and other distributions upon the shares of MoSys Delaware
Common Stock or MoSys Delaware Preferred Stock, as the case may be,
represented by such outstanding certificate as provided above.
(c) Each certificate representing MoSys Delaware Common Stock or
MoSys Delaware Preferred Stock so issued in the Merger shall bear the same
legends, if any, with respect to the restrictions on transferability as the
certificates of MoSys California so converted and given in exchange
therefore, unless otherwise determined by the Board of Directors of MoSys
Delaware in compliance with applicable laws, or other such additional legends
as are agreed upon by the holder and MoSys Delaware.
(d) If any certificate for shares of MoSys Delaware Common Stock or
MoSys Delaware Preferred Stock is to be issued to a person or entity
("PERSON") other than the Person in whose name the certificate surrendered in
exchange therefor is registered, it will be a condition of the issuance
thereof that the certificate so surrendered will be properly endorsed and
otherwise in proper form for transfer, that such transfer otherwise be proper
and comply with applicable
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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 other than that of the registered holder of
the certificate surrendered or establish to the satisfaction of MoSys
Delaware that such tax has been paid or is not payable.
(e) If any certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the Person claiming such
certificate to be lost, stolen or destroyed and, if required by MoSys
Delaware, the posting by such Person of a bond in such reasonable amount as
MoSys Delaware may direct as indemnity against any claim that may be made
against it with respect to such certificate, MoSys Delaware will cause a new
certificate to be issued in exchange for such lost, stolen or destroyed
certificate.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 TERMINATION. This Merger Agreement may be terminated by either
party at any time prior to the Effective Time.
5.2 AMENDMENT. This Merger Agreement may be amended by the Parties
at any time before or after approval hereof by the shareholders of MoSys
California and MoSys Delaware, but, after any such approval, no amendment
which by law requires the further approval of the shareholders of any of
MoSys California and/or MoSys Delaware may be made without such approval
having first been obtained. This Merger Agreement may not be amended except
by an instrument in writing signed on behalf of each of the Parties.
5.3 COUNTERPARTS. This Merger Agreement may be executed in
counterparts.
5.4 LAW GOVERNING. This Merger Agreement shall be interpreted in
accordance with and governed by the laws of the State of Delaware, without
regard to principles of conflicts of law.
5.5 SEVERABILITY. If any of the provisions of this Merger Agreement
are determined to be void or unenforceable, such provision shall be severed
from this agreement without affecting the validity and enforceability of any
of the other provisions hereof.
* * *
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IN WITNESS WHEREOF, the parties have duly executed this Merger
Agreement as of the date first written above.
MONOLITHIC SYSTEM TECHNOLOGY, MONOLITHIC SYSTEM TECHNOLOGY,
INC., A CALIFORNIA CORPORATION INC., A DELAWARE CORPORATION
_____________________________ ______________________________
By: Fu-Xxxxx Xxx By: Fu-Xxxxx Xxx
Title: President Title: President
_____________________________ ______________________________
By: F. Xxxxxx Xxxxxxxx By: F. Xxxxxx Xxxxxxxx
Title: Secretary Title: Secretary
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