AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER, made and entered into as of June 5, 1996, by
and between PARADIGM TECHNOLOGY, INC., a Delaware corporation ("Paradigm"), and
NEWLOGIC CORP., a Delaware corporation ("NewLogic"),
W I T N E S S E T H:
WHEREAS, Paradigm and NewLogic (collectively the "Constituent
Corporations") have entered into a Securities Purchase Agreement (the "Purchase
Agreement") dated as of April 22, 1996, as amended; and
WHEREAS, the Board of Directors of the Constituent Corporations deem it
advisable and in the best interests of the Constituent Corporations and in the
best interests of the stockholders of the Constituent Corporations that NewLogic
be merged with and into Paradigm (the "Merger") in accordance with Section 251
of the Delaware General Corporation Law:
NOW, THEREFORE, the Constituent Corporations hereby agree as follows:
ARTICLE I
1.1 Paradigm. Paradigm was incorporated under the laws of the State of
Delaware on April 4, 1995. Paradigm is authorized to issue 5,000,000 shares of
Preferred Stock, $.01 par value per share ("Paradigm Preferred Stock"), and
25,000,000 shares of Common Stock, $.01 par value per share ("Paradigm Common
Stock"). As of May 29, 1996, an aggregate of 6,820,641 shares of Paradigm Common
Stock were issued and outstanding, and no shares of Paradigm Preferred Stock
were issued or outstanding.
1.2 NewLogic. NewLogic was incorporated under the laws of the State of
Delaware on July 1, 1993. NewLogic is authorized to issue 10,765,000 shares of
Common Stock, $0.01 par value ("NewLogic Common Stock"), and 4,235,000 shares of
Preferred Stock, $0.01 par value ("NewLogic Preferred Stock"), of which 60,000
authorized shares are designated Series A Preferred Stock, 3,750,000 authorized
shares are designated Series B-1 Preferred Stock and 425,000 authorized shares
are designated Series B-2 Preferred Stock. As of May 29, 1996, an aggregate of
3,226,160 shares of NewLogic Common Stock were issued and outstanding, no shares
of NewLogic Series A Preferred Stock were issued and outstanding, an aggregate
of 1,825,000 shares of NewLogic Series B-1 Preferred Stock were issued and
outstanding and no shares of NewLogic Series B-2 Preferred Stock were issued and
outstanding.
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ARTICLE II - The Merger
2.1 Effectiveness of Merger. The Merger shall become effective at such
time ("Effective Time of the Merger") as this Agreement of Merger or a
Certificate of Merger is duly filed in accordance with the laws of Delaware. At
the Effective Time of the Merger, NewLogic shall be merged into Paradigm and the
separate corporate existence of NewLogic shall thereupon cease. Paradigm shall
be the surviving corporation in the Merger (the "Surviving Corporation") and the
separate corporate existence of Paradigm with all its purposes, objects, rights,
privileges, powers and franchises, shall continue unaffected and unimpaired by
the Merger. Paradigm stockholder approval of the Merger is not required pursuant
to Section 251(f) of the code because Paradigm shares representing less than 20%
of outstanding Paradigm stock will be issued in the Merger. All requisite
NewLogic stockholder approval of the Merger has been obtained.
2.2 Effect of Merger. The Surviving Corporation shall possess all
assets and property of every description, and every interest therein, wherever
located, and the rights, privileges, immunities, powers, franchises, and
authority, of a public as well as of a private nature, of the Constituent
Corporations, and all obligations belonging to or due to each of the Constituent
Corporations, all of which shall be vested in the Surviving Corporation without
further act or deed, and title to any real estate or any interest therein vested
in the Constituent Corporations shall not revert or in any way be impaired by
reason of the Merger.
The Surviving Corporation shall be liable for all obligations of the
Constituent Corporations, including liability, if any, to dissenting
stockholders, and any claim existing, or action or proceeding pending, by or
against the Constituent Corporations, may be prosecuted to judgment, with right
of appeal, as if the Merger had not taken place. All the rights of creditors of
the Constituent Corporations shall be preserved unimpaired, and all liens upon
the property of the Constituent Corporations shall be preserved unimpaired, on
only the property affected by such liens immediately prior to the Effective Time
of the Merger.
2.3 Further Assurances. If, at any time after the Effective Time of the
Merger, the Surviving Corporation shall consider or be advised that any
conveyance, assignment, transfer, deed or other instrument or act is necessary
or desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of NewLogic acquired or to be acquired by the Surviving
Corporation as a result of, or in connection with the Merger or to otherwise
carry out this Merger Agreement, the officers and directors of the Surviving
Corporation shall and will be authorized to execute, acknowledge and deliver, in
the name and on behalf of
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the Constituent Corporations or otherwise, all such instruments and to do such
acts.
ARTICLE III
Certificate of Incorporation, By-Laws and
Directors of the Surviving Corporation
3.1 Certificate of Incorporation. The Certificate of Incorporation of
Paradigm in effect at the Effective Time of the Merger shall be the Certificate
of Incorporation of the Surviving Corporation.
3.2 By-laws. The By-laws of Paradigm in effect at the Effective Time of
the Merger shall be the by-laws of the Surviving Corporation.
3.3 Directors. The directors of Paradigm holding office at the
Effective Time of the Merger shall be the directors of the Surviving Corporation
(each of whom shall continue in office until the next annual meeting of
stockholders of the Surviving Corporation and until his or her respective
successor has been elected).
ARTICLE IV
Manner and Basis of Converting
Shares of the Constituent Corporations
4.1 Conversion of Shares. At the Effective Time of the Merger:
(a) all shares of NewLogic Common Stock which are held in its treasury
immediately prior to the Effective Time of the Merger shall be canceled;
(b) each share of Paradigm Common Stock and Paradigm Preferred Stock
which is outstanding immediately prior to the Effective Time of the Merger shall
continue to be outstanding immediately after the Effective Time of the Merger;
(c) each share of NewLogic Common Stock which is outstanding
immediately prior to the Effective Time of the Merger, other than 253,667 shares
of Common Stock which shall be converted pursuant to subsection (e) below, shall
be converted at the Effective Time of the Merger into .07518797 (or 1/13.3)
shares of Common Stock, of the Surviving Corporation;
(d) Each share of NewLogic Series B-1 Preferred Stock which is
outstanding immediately prior to the Effective Time of the Merger, other than
the 825,000 shares of NewLogic Series B-1 Preferred Stock held by Nichimen
Corporation which shall be converted pursuant to subsection (f) below, shall be
converted at the Effective Time of the Merger into .09090909 (or 1/11) shares of
Common Stock, of the Surviving Corporation; and
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(e) Each share of NewLogic Common Stock set forth below which is
outstanding immediately prior to the Effective Time of the Merger shall be
converted at the Effective Time of the Merger into the right to receive
$0.650376:
Number of Shares Issued To
---------------- -------------
96,267 Xxxx Xxxxx
129,400 Xxxxxxxx Xxxx
2,000 Xxxxx Xxxxxxx
2,000 Xxxxxxx Xxxxxxxx
24,000 Xxxxx XxxXxxxxxx
(f) Each share of NewLogic Series B-1 Preferred Stock held by Nichimen
Corporation which is outstanding immediately prior to the Effective Time of the
Merger, shall be converted at the Effective Time of the Merger into the right to
receive $0.80.
4.2 Share Certificates. As soon as practicable after the Effective Time
of the Merger and after surrender to the Exchange Agent designated by the
Surviving Corporation (the "Exchange Agent") of any certificate which prior to
the Effective Time of the Merger shall have represented any shares of NewLogic
Common Stock or NewLogic Preferred Stock, the Surviving Corporation shall cause
to be distributed to the persons identified in the Purchase Agreement
certificates registered in the name of such persons representing the number of
full shares of Common Stock of the Surviving Corporation into which any shares
previously represented by the surrendered certificate shall have been converted
at the Effective Time of the Merger. As soon as practicable after the Effective
Time of the Merger and after surrender to the Exchange Agent of any certificate
which prior to the Effective Time of the Merger shall have represented the
Shares described in Sections 4.1(e) and (f) above, the Surviving Corporation
shall cause to be distributed to the holders thereof cash in the amount set
forth in Section 4.1(e) and (f) above and in accordance with that certain
Investors Purchase Agreement by and between Paradigm and such stockholders.
Until surrender as contemplated by the preceding two sentences, each certificate
which immediately prior to the Effective Time of the Merger shall have
represented any shares of NewLogic Common Stock or NewLogic Preferred Stock
shall be deemed from and after the Effective Time of the Merger to represent
only the right to receive upon such surrender the certificates or cash
contemplated by the preceding two sentences.
4.3 Fractional Share Interests. No certificates or scrip representing
fractional shares of Common Stock of the Surviving Corporation shall be issued
upon the surrender for exchange of certificates for NewLogic Common Stock or
NewLogic Preferred Stock pursuant to this Article IV and no dividend or stock
split by the Surviving Corporation shall relate to any fractional
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share, and such fractional share interests shall not entitle the owner thereof
to vote or to any rights of a stockholder. In lieu of any such fractional
shares, each holder of a fractional interest shall be entitled to receive cash
in an amount equal to his or her fractional share interest.
ARTICLE V
Termination and Amendment
5.1 Termination. Notwithstanding the approval of this Agreement of
Merger by the stockholders of NewLogic and Paradigm, this Agreement of Merger
shall terminate forthwith in the event that the Purchase Agreement shall be
terminated as therein provided. In the event of the termination of this
Agreement of Merger as provided above, this Agreement of Merger shall forthwith
become void and there shall be no liability on the part of either NewLogic or
Paradigm or their respective officers or directors, except as expressly provided
for in the Purchase Agreement.
5.2 Amendment. This Merger Agreement may be amended by the parties
hereto, by action taken by their respective Boards of Directors, at any time
before or after approval hereof by the stockholders of either NewLogic or
Paradigm, but, after any such approval, no amendment shall be made which changes
the ratio at which NewLogic Common Stock or NewLogic Preferred Stock is to be
converted as provided in Section 4.1 of this Merger Agreement or which in any
way adversely affects the holders of NewLogic Common Stock or NewLogic Preferred
Stock without the further approval of such stockholders. This Merger Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto. This Merger Agreement may be executed in two or more
counterparts which together shall constitute a single agreement.
IN WITNESS WHEREOF, Paradigm and NewLogic have caused this Agreement of
Merger to be signed by their respective officers thereunto duly authorized as of
the date first written above.
PARADIGM TECHNOLOGY, INC.
By___________________________________
President
ATTEST:
________________________________
Secretary
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NEWLOGIC CORP.
By___________________________________
President
ATTEST:
_________________________________
Secretary
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