Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF COBALT NETWORKS, INC.
A DELAWARE CORPORATION
AND
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of September __, 1999, (the
"Agreement") is between Cobalt Networks, Inc., a Delaware corporation ("Cobalt-
Delaware") and Cobalt Networks, Inc., a California corporation ("Cobalt-
California"). Cobalt-Delaware and Cobalt-California are sometimes referred to
herein as the "Constituent Corporations."
R E C I T A L S
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A. Cobalt-Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 137,609,875
shares, 120,000,000 of which are designated "Common Stock", $0.001 par value,
and 17,609,875 of which are designated "Preferred Stock", $0.001 par value. Of
such authorized shares of Preferred Stock, 3,734,901 shares are designated
"Series A Preferred Stock," 3,740,522 shares are designated "Series B Preferred
Stock" and 10,134,452 shares are designated "Series C Preferred Stock." As of
the date of this Agreement of Merger, 1,000 shares of Common Stock are issued
and outstanding, all of which were held by Cobalt-California. No shares of
Preferred Stock are outstanding.
B. Cobalt-California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 43,609,875
shares, 26,000,000 of which are designated "Common Stock", no par value and
17,609,875 of which are designated "Preferred Stock", no par value. Of such
authorized shares of Preferred Stock, 3,734,901 shares are designated "Series A
Preferred Stock," and 3,740,522 shares are designated "Series B Preferred Stock"
and 10,134,452 shares are designated "Series C Preferred Stock." As of the
record date of the meeting of shareholders at which this Agreement of Merger was
approved, 5,262,410 shares of Common Stock, 3,572,401 shares of Series A
Preferred Stock, 3,698,910 shares of Series B Preferred Stock and 9,813,507
shares of Series C Preferred Stock were issued and outstanding.
C. The Board of Directors of Cobalt-California has determined that, for
the purpose of effecting the reincorporation of Cobalt-California in the State
of Delaware, it is advisable and in the best interests of Cobalt-California that
Cobalt-California merge with and into Cobalt-Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of Cobalt-Delaware and Cobalt-
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.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Cobalt-Delaware and Cobalt-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
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Delaware General Corporation Law and the California General Corporation Law,
Cobalt-California shall be merged with and into Cobalt-Delaware (the "Merger"),
the separate existence of Cobalt-California shall cease and Cobalt-Delaware
shall be, and is herein sometimes referred as, the "Surviving Corporation", and
the name of the Surviving Corporation shall be Cobalt Networks, Inc.
1.2 Filing and Effectiveness. The Merger shall be completed when the
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following actions shall have been completed:
(a) This Agreement and Merger was adopted and approved by the
stockholders of each Constituent Corporation in accordance with the requirements
of the Delaware General Corporation Law and the California General Corporation
Law on September __, 1999 and September __, 1999, respectively;
(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 Agreement and Plan of Merger 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 Certificate of Merger or an executed, acknowledged
and certified counterpart of this Agreement meeting the requirements of the
California Corporations Code shall have been filed with the Secretary of State
of the State of California.
Pursuant to Section 251 of the Delaware General Corporation Law and
Section 1168 of the California Corporations Code, the date and time when the
Merger shall become effective, shall be the date upon which subsections (a), (b)
and (c) of this Section 1.2 are satisfied and as to Cobalt-California on the day
subsection (d) is satisfied, is herein called the "Effective Date of the
Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
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separate existence of Cobalt-California shall cease and Cobalt-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
Cobalt-California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Cobalt-California
in the manner more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of Cobalt-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
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Cobalt-California in the same manner as if Cobalt-Delaware had itself incurred
them, all as more fully provided under the applicable provisions of the Delaware
General Corporation Law and the California Corporations Code.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
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Cobalt-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 Cobalt-Delaware as in effect immediately prior
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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 Cobalt-
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California 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.
III. MANNER OF CONVERSION OF STOCK
3.1 Cobalt-California Common Shares. Upon the Effective Date of the
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Merger, each share of Cobalt-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 shares or any other person,
be converted into and exchanged for one fully paid and nonassessable share of
Common Stock, $.001 par value, of the Surviving Corporation. No fractional
share interests of Surviving Corporation Common Stock shall be issued. In lieu
thereof, any fractional share interests to which a holder would otherwise be
entitled shall be aggregated.
3.2 Cobalt-California Preferred Shares.
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(a) Upon the Effective Date of the Merger, each share of Series A
Preferred, Series B Preferred, and Series C Preferred Stock of Cobalt-
California, no par value, issued and outstanding immediately prior to the
Merger, which shares are convertible into such number of shares of Cobalt-
California Common Stock as set forth in the Cobalt-California Restated 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 or exchanged for one fully paid and nonassessable
share of Series A Preferred, Series B Preferred and Series C Preferred Stock of
the Surviving Corporation, $0.001 par value, respectively, having such rights,
preferences and privileges as set forth in the Certificate of Incorporation of
the Surviving Corporation, which share 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 Cobalt-California Preferred Stock was so
convertible into 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.
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3.3 Cobalt-California Options, Warrants, Stock Purchase Rights and
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Convertible Securities.
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(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume the obligations of Cobalt-California under, and continue, the
option plans (including without limitation the 1997 Employee Stock Plan ("Stock
Option Plan"), 1999 Employee Stock Purchase Plan and 1999 Director Option Plan)
and all other employee benefit plans of Cobalt-California. Each outstanding and
unexercised option, warrant, other right to purchase, or security convertible
into, Cobalt-California Common Stock or Cobalt-California Preferred Stock (a
"Right") shall become, subject to the provisions in paragraph (c) hereof, an
option, warrant, 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 Cobalt-California Common Stock or Preferred
Stock, as the case may be, 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 Cobalt-California Right at the Effective Date of the
Merger. This paragraph 3.3(a) shall not apply to Cobalt-California Common Stock
or Preferred Stock. Such Common Stock and Preferred Stock are subject to
paragraph 3.1 and 3.2, respectively, hereof.
(b) A number of shares of the Surviving Corporation's Common Stock
and Preferred Stock shall be reserved for issuance upon the exercise of options,
warrants, stock purchase rights and convertible securities equal to the number
of shares of Cobalt-California Common Stock and Cobalt-California 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 Cobalt-Delaware's 1997 Stock Option Plan, 1999
Employee Stock Purchase Plan and 1999 Director 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.
Notwithstanding the foregoing, with respect to options issued under
the Cobalt-California 1997 Stock Option Plan, 1999 Employee Stock Purchase Plan
and 1999 Director 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.
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3.4 Cobalt-Delaware Common Stock. Upon the Effective Date of the Merger,
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each share of Common Stock, $.001 par value, of Cobalt-Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by Cobalt-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,
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each holder of an outstanding certificate representing shares of Cobalt-
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 Surviving Corporation's Common Stock or
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 Cobalt-California Common Stock or Preferred
Stock shall be deemed for all purposes to represent the number of shares of the
Surviving Corporation's Common Stock or Preferred Stock, respectively, into
which such shares of Cobalt-California Common Stock or Preferred Stock, as the
case may be, 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 or
Preferred Stock of the Surviving Corporation represented by such outstanding
certificate as provided above.
Each certificate representing Common Stock or Preferred 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
Cobalt-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.
If any certificate for shares of the 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 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 the Surviving
Corporation that such tax has been paid or is not payable.
IV. GENERAL
4.1 Covenants of Cobalt-Delaware. Cobalt-Delaware covenants and agrees
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that it will, on or before the Effective Date of the Merger:
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(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith 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 Cobalt-Delaware of all of the franchise
tax liabilities of Cobalt-California.
(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
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Cobalt-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Cobalt-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 Cobalt-Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Cobalt-California and otherwise to carry out the purposes of
this Agreement, and the officers and directors of Cobalt-Delaware are fully
authorized in the name and on behalf of Cobalt-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,
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this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Cobalt-California or of Cobalt-
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of Cobalt-California or by the sole stockholder of Cobalt-Delaware,
or by both.
4.4 Amendment. The Boards of Directors of the Constituent Corporations
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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: (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
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in the State of Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx
Xxxxxx, XX 00000 and The Corporation Trust Company is the registered agent of
the Surviving Corporation at such address.
4.6 Agreement. Executed copies of this Agreement will be on file at the
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principal place of business of the Surviving Corporation at 000 Xxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
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4.7 Governing Law. This Agreement shall in all respects be construed,
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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
California General Corporation Law.
4.8 FIRPTA Notification.
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(a) On the Effective Date of the Merger, Cobalt-California shall
deliver to Cobalt-Delaware, as agent for the shareholders of Cobalt-California,
a properly executed statement (the "Statement") substantially in the form
attached hereto as Exhibit A. Cobalt-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 Cobalt-California immediately
prior to the Merger. In consequence of the approval of the Merger by the
shareholders of Cobalt-California, (i) such shareholders shall be considered to
have requested that the Statement be delivered to Cobalt-Delaware as their agent
and (ii) Cobalt-Delaware shall be considered to have received a copy of the
Statement at the request of the Cobalt-California shareholders for purposes of
satisfying Cobalt-Delaware's obligations under Treasury Regulation Section
1.1445-2(c)(3).
(b) Cobalt-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).
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Cobalt-Delaware and Cobalt-California
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
COBALT NETWORKS, INC.
a California corporation
By:__________________________________________
Xxxxxxx XxXxxx, President
and Chief Executive Officer
ATTEST:
_____________________________
Xxxxxx X. Xxxx
Secretary
COBALT NETWORKS, INC.
a Delaware corporation
By:__________________________________________
Xxxxxxx XxXxxx, President
and Chief Executive Officer
ATTEST:
_____________________________
Xxxxxx X. Xxxx
Secretary
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EXHIBIT A
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September __, 1999
TO THE SHAREHOLDERS OF COBALT NETWORKS, INC.:
In connection with the reincorporation (the "Reincorporation") in Delaware
of Cobalt Networks, Inc., a California corporation (the "Company"), pursuant to
the Agreement and Plan of Merger (the "Agreement") dated as of September __,
1999 between the Company and Cobalt Networks, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company ("Cobalt-Delaware"), your shares of
Company stock will be replaced by shares of stock in Cobalt-Delaware.
In order to establish that (i) you will not be subject to tax under Section
897 of the Internal Revenue Code of 1986, as amended (the "Code"), in
consequence of the Reincorporation and (ii) Cobalt-Delaware will not be required
under Section 1445 of the Code to withhold taxes from the Cobalt-Delaware stock
that you will receive in connection therewith, the Company hereby represents to
you that, as of the date of this letter, shares of Company stock do not
constitute a "United States real property interest" within the meaning of
Section 897(c) of the Code and the regulations issued thereunder.
A copy of this letter will be delivered to Cobalt-Delaware pursuant to
Section 4.9 of the Agreement.
Under penalties of perjury, the undersigned officer of the Company hereby
declares that, to the best knowledge and belief of the undersigned, the facts
set forth herein are true and correct.
Sincerely,
___________________________________
Xxxxxxx XxXxxx, President and
Chief Executive Officer
