EXHIBIT 2.01
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement") is made as
of ________, 1999 by and between Xxxxxxx.xxx, Inc., a California corporation
("Xxxxxxx.xxx California"), and Xxxxxxx.xxx, Inc., a Delaware corporation
("Xxxxxxx.xxx Delaware"). Xxxxxxx.xxx California and Xxxxxxx.xxx Delaware are
hereinafter sometimes collectively referred to as the "Constituent
Corporations."
R E C I T A L S
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A. Xxxxxxx.xxx California was incorporated on October 3, 1995. Its
current authorized capital stock consists of: (1) 50,000,000 shares of Common
Stock, no par value ("Xxxxxxx.xxx California Common Stock"), of which
[5,354,764] shares are issued and outstanding, and (2) 5,639,636 shares of
Preferred Stock no par value ("Xxxxxxx.xxx California Preferred Stock"),
including (a) 1,649,657 shares of Series A Preferred Stock ("Xxxxxxx.xxx
California Series A Stock"), of which 1,593,319 shares are issued and
outstanding; (b) 1,700,000 shares of Series B Preferred Stock ("Xxxxxxx.xxx
California Series B Stock"), of which 1,632,297 shares are issued and
outstanding; (c) 1,579,979 shares of Series C Preferred Stock ("Xxxxxxx.xxx
California Series C Stock"), all of which shares are issued and outstanding; and
(d) 837,014 shares of Series D Preferred Stock ("Xxxxxxx.xxx California Series D
Stock"), 573,240 of which shares are issued and outstanding.
B. Xxxxxxx.xxx Delaware was incorporated on January 20, 1999. Its
authorized capital stock consists of: (1) 60,000,000 shares of Common Stock,
with a par value of $0.001 per share ("Xxxxxxx.xxx Delaware Common Stock"), of
which 1,000 shares are issued and outstanding; and (2) 13,649,976 shares of
Preferred Stock, $0.001 par value ("Xxxxxxx.xxx Delaware Preferred Stock") of
which (a) 2,474,486 shares have been designated Series A Preferred Stock
("Xxxxxxx.xxx Delaware Series A Stock"), none of which shares are issued and
outstanding; (b) 2,550,000 shares have been designated Series B Preferred Stock
("Xxxxxxx.xxx Delaware Series B Stock"), none of which shares are issued and
outstanding; (c) 2,369,969 shares have been designated Series C Preferred Stock
("Xxxxxxx.xxx Delaware Series C Stock"), none of which shares are issued and
outstanding; and (d) 1,255,521 shares of Series D Preferred Stock ("Xxxxxxx.xxx
Delaware Series D Stock"), none of which shares are issued and outstanding.
C. The Boards of Directors of Xxxxxxx.xxx California and Xxxxxxx.xxx
Delaware deem it advisable and to the advantage of each of the Constituent
Corporations that Xxxxxxx.xxx California merge with and into Xxxxxxx.xxx
Delaware upon the terms and subject to the conditions set forth in this Merger
Agreement for the purpose of effecting a change of the state of incorporation of
Xxxxxxx.xxx California from California to Delaware.
D. The Boards of Directors of each of the Constituent Corporations
have approved this Merger Agreement.
Xxxxxxx.xxx, Inc. Corporation
Agreement and Plan of Merger
Now, Therefore, the parties do hereby adopt the plan of reorganization
set forth in this Merger Agreement and do hereby agree that Xxxxxxx.xxx
California shall merge with and into Xxxxxxx.xxx Delaware on the following
terms, conditions and other provisions:
1. Merger and Effective Date. On the Effective Date (as defined
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below), Xxxxxxx.xxx California shall be merged with and into Xxxxxxx.xxx
Delaware (the "Merger"), and Xxxxxxx.xxx Delaware shall be the surviving
corporation of the Merger (the "Surviving Corporation"). The Merger shall
become effective upon the close of business on the date when a duly executed
copy of this Merger Agreement, along with all required officers' certificates,
is filed with the Secretary of State of the State of California, or upon the
close of business on the date when a duly executed copy of this Merger
Agreement, along with all required officers' certificates, is filed with the
Secretary of State of the State of Delaware, whichever later occurs (the
"Effective Date").
2. Effect of Merger. On the Effective Date, the separate corporate
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existence of Xxxxxxx.xxx California shall cease; the corporate identity,
existence, powers, rights and immunities of Xxxxxxx.xxx Delaware as the
Surviving Corporation shall continue unimpaired by the Merger; and Xxxxxxx.xxx
Delaware shall succeed to and shall possess all the assets, properties, rights,
privileges, powers, franchises, immunities and purposes, and be subject to all
the debts, liabilities, obligations, restrictions and duties of Xxxxxxx.xxx
California, all without further act or deed.
3. Governing Documents. On the Effective Date, the Certificate of
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Incorporation of Xxxxxxx.xxx Delaware in effect immediately prior to the
Effective Date shall become the Certificate of Incorporation of the Surviving
Corporation and the Bylaws of Xxxxxxx.xxx Delaware in effect immediately prior
to the Effective Date shall become the Bylaws of the Surviving Corporation.
4. Directors and Officers. On the Effective Date, the directors and
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officers of Xxxxxxx.xxx Delaware shall be and become the directors and officers
(holding the same titles and positions) of the Surviving Corporation, and after
the Effective Date shall serve in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
5. Shares of Xxxxxxx.xxx California. On the Effective Date, each
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share of Xxxxxxx.xxx California Common Stock of outstanding immediately prior
thereto shall be automatically changed and converted into one and one-half (1
1/2) fully paid and nonassessable, issued and outstanding shares of Xxxxxxx.xxx
Delaware Common Stock. On the Effective Date, each share of Xxxxxxx.xxx
California Series A Stock, Series B Stock, Series C Stock or Series D Stock
outstanding immediately prior thereto shall be automatically changed and
converted into one and one-half (1 1/2) fully paid and nonassessable, issued
and outstanding shares of Xxxxxxx.xxx Delaware Series A Stock, Series B Stock,
Series C Stock or Series D Stock, respectively.
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Xxxxxxx.xxx, Inc. Corporation
Agreement and Plan of Merger
6. Shares of Xxxxxxx.xxx Delaware. On the Effective Date, all of the
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previously issued and outstanding shares of Xxxxxxx.xxx Delaware Common Stock
shall be automatically retired and cancelled.
7. Stock Certificates. On and after the Effective Date, all of the
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outstanding certificates that, prior to that date, represented shares of
Xxxxxxx.xxx California Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of Xxxxxxx.xxx Delaware
Common Stock into which such shares of Xxxxxxx.xxx California Common Stock are
converted as provided herein. On and after the Effective Date, all of the
outstanding certificates that, prior to that date, represented shares of
Xxxxxxx.xxx California Series A Stock, Series B Stock, Series C Stock or Series
D Stock shall be deemed for all purposes to evidence ownership of and to
represent the number of shares of Xxxxxxx.xxx Delaware Series A Stock, Series B
Stock, Series C Stock or Series D Stock, respectively, into which such shares of
Xxxxxxx.xxx California Series A Stock, Series B Stock, Series C Stock or Series
D Stock are converted as provided herein. The registered owner on the books and
records of Xxxxxxx.xxx California of any such outstanding stock certificate for
Xxxxxxx.xxx California Common Stock or Xxxxxxx.xxx California Series A Stock,
Series B Stock, Series C Stock or Series D Stock shall, until such certificate
shall have been surrendered for transfer or otherwise accounted for to
Xxxxxxx.xxx Delaware or its transfer agent, be entitled to exercise any voting
and other rights with respect to, and to receive any dividend and other
distributions upon, the shares of Xxxxxxx.xxx Delaware Common Stock or
Xxxxxxx.xxx Delaware Series A Stock, Series B Stock, Series C Stock or Series D
Stock, respectively, evidenced by such outstanding certificate as above
provided.
8. Options; Warrants. Upon the Effective Date, all outstanding and
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unexercised portions of all options to purchase Xxxxxxx.xxx California Common
Stock under the Xxxxxxx.xxx California 1997 Stock Option Plan, and all other
outstanding options or warrants to purchase Xxxxxxx.xxx California Common Stock
or Xxxxxxx.xxx California Series A Stock, Series B Stock, Series C Stock or
Series D Stock, shall become options or warrants to purchase one and one-half (1
1/2) the number of shares of Xxxxxxx.xxx Delaware Common Stock or Xxxxxxx.xxx
California Series A Stock, Series B Stock, Series C Stock or Series D Stock,
respectively, at two-thirds (2/3) of the price set forth in such Xxxxxxx.xxx
California option and/or warrant documents, with the same vesting schedule and
other material terms and conditions applying. Additionally, upon the Effective
Date, Xxxxxxx.xxx Delaware shall adopt and assume the Xxxxxxx.xxx California
1999 Equity Incentive Plan, the Xxxxxxx.xxx California 1999 Employees Stock
Purchase Plan and the Xxxxxxx.xxx California 1999 Directors Stock Option Plan.
9. Fractional Shares. No fractional shares of Xxxxxxx.xxx Delaware
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Common Stock or Preferred Stock will be issued in connection with the Merger.
In lieu thereof, Xxxxxxx.xxx Delaware shall pay each shareholder of Xxxxxxx.xxx
California who would otherwise be entitled to receive a fractional share of
Xxxxxxx.xxx Delaware Common Stock or Preferred Stock (assuming the aggregation
of all shares held by the same holder of more than one stock certificate
representing shares of Xxxxxxx.xxx California Common Stock or Preferred Stock,
as the case may be) a cash amount equal to the applicable fraction
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Xxxxxxx.xxx, Inc. Corporation
Agreement and Plan of Merger
multiplied by the fair market value of a share of Xxxxxxx.xxx Delaware Common
Stock or Preferred Stock, as the case may be, as determined by the Board of
Directors of Xxxxxxx.xxx Delaware in good faith (the "Fair Market Value Per
Share"). Upon exercise of each assumed option of Xxxxxxx.xxx California to
purchase Xxxxxxx.xxx Delaware Common Stock, cash will be paid by Xxxxxxx.xxx
Delaware in lieu of any fractional share of Xxxxxxx.xxx Delaware Common Stock,
respectively, issuable upon exercise of such option, and the amount of cash
received for such fractional share shall be the Fair Market Value Per Share upon
exercise thereof multiplied by the applicable fraction, less the unpaid exercise
price per share for such fraction.
10. Employee Benefit Plans. On the Effective Date, the obligations of
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Xxxxxxx.xxx California under or with respect to every plan, trust, program and
benefit then in effect or administered by Xxxxxxx.xxx California for the benefit
of the directors, officers and employees of Xxxxxxx.xxx California or any of its
subsidiaries shall become the lawful obligations of Xxxxxxx.xxx Delaware and
shall be implemented and administered in the same manner and without
interruption until the same are amended or otherwise lawfully altered or
terminated. Effective upon the Effective Date, Xxxxxxx.xxx Delaware hereby
expressly adopts and assumes all obligations of Xxxxxxx.xxx California under
such employee benefit plans.
11. Further Assurances. From time to time, as and when required by
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the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of Xxxxxxx.xxx California such deeds,
assignments and other instruments, and there shall be taken or caused to be
taken by it all such further action, as shall be appropriate, advisable or
necessary in order to vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation the title to and possession of all property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of
Xxxxxxx.xxx California, and otherwise to carry out the purposes of this Merger
Agreement. The officers and directors of the Surviving Corporation are fully
authorized in the name of and on behalf of Xxxxxxx.xxx California, or otherwise,
to take any and all such actions and to execute and deliver any and all such
deeds and other instruments as may be necessary or appropriate to accomplish the
foregoing.
12. Condition. The consummation of the Merger is subject to the
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approval of this Merger Agreement and the Merger contemplated hereby by the
shareholders of Xxxxxxx.xxx California and by the sole stockholder of
Xxxxxxx.xxx Delaware, prior to or on the Effective Date.
13. Abandonment. At any time before the Effective Date, this Merger
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Agreement may be terminated and the Merger abandoned by the Board of Directors
of Xxxxxxx.xxx California or Xxxxxxx.xxx Delaware, notwithstanding approval of
this Merger Agreement by the Boards of Directors and shareholders of Constituent
Corporations Xxxxxxx.xxx California and Xxxxxxx.xxx Delaware.
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Xxxxxxx.xxx, Inc. Corporation
Agreement and Plan of Merger
14. Amendment. At any time before the Effective Date, this Merger
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Agreement may be amended, modified or supplemented by the Boards of Directors of
the Constituent Corporations, notwithstanding approval of this Merger Agreement
by the shareholders of Xxxxxxx.xxx California and by the sole stockholder of
Xxxxxxx.xxx Delaware; provided, however, that any amendment made subsequent to
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the adoption of this Agreement by the shareholders of Xxxxxxx.xxx California or
the sole stockholder of Xxxxxxx.xxx Delaware 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 upon conversion of any shares of any class or series
of Xxxxxxx.xxx California, (b) alter or change of any of the terms of the
Certificate of Incorporation of the Surviving Corporation to be effected by the
Merger, or (c) alter or change any of the terms or conditions of this Agreement
if such alteration or change would adversely affect the holders of any shares
of any class or series of Xxxxxxx.xxx California or Xxxxxxx.xxx Delaware.
15. Tax-Free Reorganization. The Merger is intended to be a tax-free
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plan of reorganization within the meaning of Section 368(a)(1)(F) of the
Internal Revenue Code of 1986, as amended.
16. Governing Law. This Agreement shall be governed by and construed
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under the internal laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to the principles of conflicts of law or choice of
laws, except to the extent that the laws of the State of Delaware would apply in
matters relating to the internal affairs of Xxxxxxx.xxx Delaware and the Merger.
17. Counterparts. In order to facilitate the filing and recording of
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this Merger Agreement, it may be executed in any number of counterparts, each of
which shall be deemed to be an original.
(THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.)
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Xxxxxxx.xxx, Inc. Corporation
Agreement and Plan of Merger
IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf
of each of the Constituent Corporations and attested by their respective
officers thereunto duly authorized.
XXXXXXX.XXX, INC. CORPORATION XXXXXXX.XXX, INC.
COMMUNICATIONS CORPORATION, a Delaware
a California corporation corporation
By: ___________________________ By: ___________________________
Xxxx X. XxXxxxx Xxxx X. XxXxxxx
President and Chief President and Chief
Executive Officer Executive Officer
ATTEST: ATTEST:
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_______________________________ _______________________________
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
Secretary Secretary
[Signature Page to Agreement and Plan of Merger]
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