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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of February ____, 1997 (the
"AGREEMENT") is between AccelGraphics, Inc., a California corporation
("ACCELGRAPHICS CALIFORNIA"), and AccelGraphics, Inc., a Delaware corporation
and a wholly-owned subsidiary of AccelGraphics California ("ACCELGRAPHICS
DELAWARE"). AccelGraphics Delaware and AccelGraphics California are sometimes
referred to herein as the "CONSTITUENT CORPORATIONS."
RECITALS
A. AccelGraphics Delaware is a corporation duly organized and existing
under the laws of the State of Delaware and has an authorized capital of
45,000,000 shares, 25,000,000 shares of which are designated "Common Stock," par
value $.001 per share, and 20,000,000 shares of which are designated "Preferred
Stock," par value $.001 per share. Of such authorized shares of Preferred
Stock, 6,954,000 shares are designated "Series A Preferred Stock," 6,954,000
shares are designated "Series A-1 Preferred Stock," 2,200,000 are designated
"Series B Preferred Stock," and 2,200,000 shares are designated "Series B-1
Preferred Stock." As of the date hereof, 1,000 shares of AccelGraphics Delaware
Common Stock were issued and outstanding, all of which are held by AccelGraphics
California, and no shares of AccelGraphics Delaware Preferred Stock were issued
and outstanding.
B. AccelGraphics California is a corporation duly organized and
existing under the laws of the State of California and has an authorized capital
of 45,000,000, none of which has any par value. Of such authorized capital,
25,000,000 shares are designated "Common Stock" and 20,000,000 shares are
designated "Preferred Stock." Of such authorized shares of Preferred Stock,
6,954,000 shares are designated "Series A Preferred Stock," 6,954,000 shares are
designated "Series A-1 Preferred Stock," 2,200,000 shares are designated "Series
B Preferred Stock," and 2,200,000 shares are designated "Series B-1 Preferred
Stock." As of the date hereof, 2,505,320 shares of Common Stock, 6,893,998
shares of Series A Preferred Stock, and 2,123,334 shares of Series B Preferred
Stock were issued and outstanding.
C. The Board of Directors of AccelGraphics California has determined
that, for the purpose of effecting the reincorporating of AccelGraphics
California in the State of Delaware, it is advisable and in the best interests
of AccelGraphics California and its shareholders that AccelGraphics California
merge with and into AccelGraphics Delaware upon the terms and conditions herein
provided.
D. The respective Boards of Directors of AccelGraphics Delaware and
AccelGraphics California, the shareholders of AccelGraphics California and the
sole shareholder of AccelGraphics Delaware have approved this Agreement and have
directed that this Agreement be executed by the undersigned officers.
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NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, AccelGraphics Delaware and AccelGraphics 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
Delaware General Corporation Law and the California General Corporation Law,
AccelGraphics California shall be merged with and into AccelGraphics Delaware
(the "MERGER"), the separate existence of AccelGraphics California shall cease
and AccelGraphics Delaware shall be, and is herein sometimes referred to as, the
"SURVIVING CORPORATION," and the name of the Surviving Corporation shall be
"AccelGraphics, Inc."
1.2 Filing and Effectiveness. The Merger shall become effective when
the following actions shall have been completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the shareholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the California
General Corporation Law;
(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 of Merger or an executed counterpart of
this Agreement and related required certificates 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 Agreement of Merger or an executed counterpart of
this Agreement and related required certificates meeting the requirements of the
California General Corporation Law shall have been filed with the Secretary of
State of the State of California.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "EFFECTIVE DATE OF THE MERGER."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of AccelGraphics California shall cease and AccelGraphics
Delaware, as the Surviving Corporation, (a) shall continue to possess all of its
assets, rights, powers and property as constituted immediately prior to the
Effective Date of the Merger, (b) shall be subject to all actions previously
taken by its and AccelGraphics California's Boards of Directors, (c) shall
succeed, without other transfer, to all of the assets, rights, powers and
property of AccelGraphics California in the manner as more fully set forth in
Section 259 of the Delaware General Corporation Law, (d) shall continue to be
subject to all of its debts, liabilities and obligations as constituted
immediately prior to the Effective Date of
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the Merger, and (e) shall succeed, without other transfer, to all of the debts,
liabilities and obligations of AccelGraphics California in the same manner as if
AccelGraphics Delaware had itself incurred them, all as more fully provided
under the applicable provisions of the Delaware General Corporation Law and the
California General Corporation Law.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
AccelGraphics Delaware shall be 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 AccelGraphics Delaware as in effect
immediately prior 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
AccelGraphics Delaware 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 AccelGraphics California Common Stock. Upon the Effective Date of
the Merger, each one share of AccelGraphics 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 share or any
other person, be converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $0.001 par value, of AccelGraphics
Delaware.
3.2 AccelGraphics California Preferred Stock. Upon the Effective Date
of the Merger, each one share of AccelGraphics California Series A Preferred
Stock, Series A-1 Preferred Stock, Series B Preferred Stock, and Series B-1
Preferred 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 Series A Preferred Stock, Series A-1
Preferred Stock, Series B Preferred Stock, and Series B-1 Preferred Stock of
AccelGraphics Delaware, $0.001 par value, respectively, having such rights,
preferences and privileges as set forth in the Certificate of Incorporation of
AccelGraphics Delaware, which shares of Preferred Stock shall be convertible
into shares of AccelGraphics Delaware's Common Stock, $.001 par value, according
to the terms of the Certificate of Incorporation of AccelGraphics Delaware.
3.3 AccelGraphics California Options, Stock Purchase Rights,
Convertible Securities and Warrants. Upon the Effective Date of the Merger,
AccelGraphics
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Delaware shall assume the obligations of AccelGraphics California under
AccelGraphics California's 1995 Stock Option Plan and all other employee benefit
plans of AccelGraphics California, including outstanding stock options of
AccelGraphics California. Each outstanding and unexercised option, other right
to purchase or security convertible into AccelGraphics California Common Stock
or Preferred Stock or warrant to purchase AccelGraphics California Common Stock
or Preferred Stock shall become an option, right to purchase, security
convertible into or warrant to purchase AccelGraphics Delaware's Common Stock or
Preferred Stock, respectively, on the basis of one share of AccelGraphics
Delaware's Common Stock or Preferred Stock, for each one share of AccelGraphics
California Common Stock or Preferred Stock, respectively, issuable pursuant to
any such option, stock purchase right, convertible security or warrant, on the
same terms and conditions and at an aggregate exercise price equal to the
exercise price applicable to any such AccelGraphics California option, stock
purchase right, other convertible security or warrant at the Effective Date of
the Merger.
A number of shares of AccelGraphics Delaware's Common Stock and
Preferred Stock shall be reserved for issuance upon the exercise of options,
stock purchase rights, convertible securities and warrants (including Preferred
Stock) on the basis of one share of AccelGraphics Delaware Common Stock and
Preferred Stock for one share of AccelGraphics California Common Stock and
Preferred Stock so reserved immediately prior to the Effective Date of the
Merger.
3.4 AccelGraphics Delaware Common Stock. Upon the Effective Date of
the Merger, each share of Common Stock, $0.001 par value, of AccelGraphics
Delaware issued and outstanding immediately prior thereto shall, by virtue of
the Merger and without any action by AccelGraphics 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,
each holder of an outstanding certificate representing shares of AccelGraphics
California Common Stock or Preferred Stock may, at such shareholder's option,
surrender the same for cancellation to the transfer agent and registrar for the
Common Stock of AccelGraphics Delaware, as exchange agent (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
appropriate class and series of AccelGraphics Delaware's capital stock into
which the surrendered shares were converted as herein provided. Until so
surrendered, each outstanding certificate theretofore representing shares of
AccelGraphics California capital stock shall be deemed for all purposes to
represent the number of whole shares of the appropriate class and series of
AccelGraphics Delaware's capital stock into which such shares of AccelGraphics
California capital stock were converted in the Merger.
The registered owner on the books and records of AccelGraphics 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 AccelGraphics Delaware or the Exchange Agent, have and be
entitled to exercise any voting and other
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rights with respect to and to receive dividends and other distributions upon the
shares of capital stock of AccelGraphics Delaware represented by such
outstanding certificate as provided above.
Each certificate representing capital stock of AccelGraphics Delaware
so issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of AccelGraphics California
so converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of AccelGraphics Delaware in compliance with applicable laws.
If any certificate for shares of AccelGraphics Delaware 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 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 AccelGraphics Delaware that such tax has been paid or is
not payable.
IV. GENERAL
4.1 Covenants of AccelGraphics Delaware. AccelGraphics Delaware
covenants and agrees that it will, on or before the Effective Date of the
Merger:
(a) File any and all documents with the California Franchise Tax
Board necessary for the assumption by AccelGraphics Delaware of all of the
franchise tax liabilities of AccelGraphics California; and
(b) 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
AccelGraphics Delaware or by its successors or assigns, there shall be executed
and delivered on behalf of AccelGraphics California such deeds and other
instruments, and there shall be taken or caused to be taken by AccelGraphics
Delaware and AccelGraphics California 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 AccelGraphics Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of AccelGraphics California and otherwise to carry out the
purposes of this Agreement, and the officers and directors of AccelGraphics
Delaware are fully authorized in the name and on behalf of AccelGraphics
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,
this Agreement may be terminated and the Merger may be abandoned for any reason
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whatsoever by the Board of Directors of either AccelGraphics California or
AccelGraphics Delaware, or both, notwithstanding the approval of this Agreement
by the shareholders of AccelGraphics California or by the sole shareholder of
AccelGraphics Delaware, or by both.
4.4 Amendment. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretaries of State of the States of
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the shareholders of either Constituent Corporation
shall not: (a) 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, (b) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger, or (c) 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 of shares or series of capital
stock of such Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at Corporation Service Co., 1013
Centre Road, in the City of Xxxxxxxxxx, Xxxxxxxx 00000, County of New Castle,
and Corporation Service Company is the registered agent of the Surviving
Corporation at such address.
4.6 FIRPTA Notification.
(a) On or before the Effective Date of the Merger, AccelGraphics
California shall deliver to AccelGraphics Delaware, as agent for the
shareholders of AccelGraphics California, a properly executed statement in such
form as reasonably requested by counsel for AccelGraphics California and
conforming to the requirements of Treasury Regulation Section 1.897-2(h)(1)(i)
(the "STATEMENT"). AccelGraphics Delaware shall, upon request, provide a copy
thereof to any person that was a shareholder of AccelGraphics California
immediately prior to the Merger. In consequence of the approval of the Merger by
the shareholders of AccelGraphics California, as provided in Recital D hereof,
(i) such shareholders shall be considered to have requested that the Statement
be delivered to AccelGraphics Delaware as their agent and (ii) AccelGraphics
Delaware shall be considered to have received a copy of the Statement at the
request of the AccelGraphics California shareholders for purposes of satisfying
AccelGraphics Delaware's obligations under Treasury Regulation Section
1.1445-2(c)(3).
(b) AccelGraphics 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).
4.7 Expenses. Each party to the transactions contemplated by this
Agreement (including, without limitation, AccelGraphics California,
AccelGraphics Delaware and
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their respective shareholders) shall pay its own expenses, if any, incurred in
connection with such transactions.
4.8 Tax Opinion a Condition Precedent. The Merger shall not be
consummated unless, on or prior to the Effective Date of the Merger,
AccelGraphics California receives from Venture Law Group, A Professional
Corporation ("VLG"), a written opinion that the Merger will qualify as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended. Such opinion shall be contingent on receipt by VLG of
(a) certain representations from AccelGraphics California and AccelGraphics
Delaware requested by VLG and (b) delivery by AccelGraphics California's
shareholders as shall be designated by VLG of "Shareholder Continuity of
Interest Certificates" in such form as requested by VLG.
4.9 Agreement. Executed copies of this Agreement will be on file at
the principal place of business of the Surviving Corporation at 0000 Xxxxxx
Xxxx, Xxx Xxxx, Xxxxxxxxxx 00000, and copies thereof will be furnished to any
shareholder of either Constituent Corporation, upon request and without cost.
4.10 Governing Law. This Agreement shall in all respects be construed,
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.
4.11 Counterparts. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of AccelGraphics Delaware and
AccelGraphics California, is hereby executed on behalf of each of such two
corporations and attested by their respective officers thereunto duly
authorized.
ACCELGRAPHICS, INC., a
Delaware corporation
By:__________________________
Name:________________________
Title:_________________________
ATTEST:
________________________________
Xxxxxxx X. Xxxx, Secretary
ACCELGRAPHICS, INC., a
California corporation
By:__________________________
Name:________________________
Title:_________________________
ATTEST:
________________________________
Xxxxxx X. Xxxxxx, Xx., Secretary
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ACCELGRAPHICS, INC.
(Disappearing Corporation)
OFFICERS' CERTIFICATE
Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxx certify that:
1. They are the President and Chief Executive Officer and the
Secretary, respectively, of AccelGraphics, Inc., a corporation organized under
the laws of the State of California.
2. The corporation has authorized two classes of stock, designated
"Common Stock" and "Preferred Stock." The authorized series of Preferred Stock
have been designated "Series A Preferred," "Series A-1 Preferred," "Series B
Preferred," and "Series B-1 Preferred."
3. There were 2,505,320 shares of Common Stock, 6,893,998 shares of
Series A Preferred Stock, and 2,123,334 shares of Series B Preferred Stock
outstanding as of the record date (the "Record Date") of the shareholders'
meeting at which the Agreement and Plan of Merger attached hereto (the "Merger
Agreement") was approved.
4. The principal terms of the Merger Agreement were approved by the
Board of Directors and by the vote of a number of shares of each class and
series of stock which equaled or exceeded the vote required.
5. The number of shares voting in favor of the amendment equaled or
exceeded the vote required, such required vote being (i) a majority of the
outstanding shares of Common Stock and (ii) a majority of the outstanding shares
of Series A and Series B Preferred Stock voting together as a separate class.
Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxx further declare under penalty of
perjury under the laws of the State of California that each has read the
foregoing certificate and knows the contents thereof and that the same is true
of their own knowledge.
Executed in San Jose, California on February , 1997.
___________________________________
Xxxxxxx X. Xxxx, President and
Chief Executive Officer
___________________________________
Xxxxxxx X. Xxxx, Secretary
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ACCELGRAPHICS, INC.
(Surviving Corporation)
OFFICERS' CERTIFICATE
Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxx certify that:
1. They are the President and Chief Executive Officer and the
Secretary, respectively, of AccelGraphics, Inc., a corporation organized under
the laws of the State of Delaware.
2. The corporation has authorized two classes of stock, designated
"Common Stock" and "Preferred Stock."
3. There are 1,000 shares of Common Stock outstanding and entitled to
vote on the Agreement and Plan of Merger attached hereto (the "Merger
Agreement"). There are no shares of Preferred Stock outstanding.
4. The principal terms of the Merger Agreement were approved by the
Board of Directors and by the vote of a number of shares of each class and
series of stock which equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes
entitled to be cast by holders of outstanding shares of Common Stock.
Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxx further declare under penalty of
perjury under the laws of the State of Delaware that each has read the foregoing
certificate and knows the contents thereof and that the same is true of their
own knowledge.
Executed in San Jose, California on February ___, 1997.
___________________________________
Xxxxxxx X. Xxxx, President and
Chief Executive Officer
___________________________________
Xxxxxxx X. Xxxx, Secretary
