1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
XXXXXXXX.XXX CORPORATION, A CALIFORNIA CORPORATION
WITH AND INTO
XXXXXXXX.XXX CORPORATION, A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made this ____ day of
May, 1998, between xxxxxxxx.xxx Corporation, a California corporation
("Company"), and xxxxxxxx.xxx Corporation, a Delaware corporation ("Newco"). The
Company and Newco are referred to herein as the parties.
RECITALS
WHEREAS, the Company has an authorized capital stock consisting of (i)
30,000,000 shares of Common Stock, of which 9,090,000 shares have been duly
issued and are now outstanding, and (ii) 10,000,000 shares of Preferred Stock,
1,985,520 of which have been designated Series A Preferred Stock, all of which
have been duly issued and are now outstanding, 2,037,038 of which have been
designated Series B Preferred Stock, all of which have been duly issued and are
now outstanding, 3,000,000 of which have been designated Series C Preferred
Stock, all of which have been duly issued and are now outstanding and 1,523,424
of which have been designated Series D Preferred Stock, 1,153,846 of which have
been duly issued and are now outstanding; and
WHEREAS, the Board of Directors of the Company and Newco deem it advisable
and generally to the advantage and welfare of the corporate parties and their
respective stockholders or shareholders, as the case may be, that the Company
merge with and into Newco under and pursuant to the provisions of the California
Corporations Code and of the General Corporation Law of the State of Delaware:
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. Merger.
1.1. Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law, the
Company shall be merged with and into Newco (the "Merger"), the separate
existence of the Company shall cease and Newco shall be, and is sometimes
referred to below as, the "Surviving Corporation," and the name of the Surviving
Corporation shall be xxxxxxxx.xxx Corporation.
1.2. Filing and Effectiveness. The Merger shall become effective upon
completion of the following actions:
2
(a) Adoption and approval of this Agreement and the Merger by the
stockholders of each Constituent Corporation in accordance with the applicable
requirements of the Delaware General Corporation Law and the California General
Corporation Law;
(b) The satisfaction or waiver of all of the conditions precedent
to the consummation of the Merger as specified in this Agreement;
(c) The filing with the Secretary of State of Delaware of an
executed Certificate of Merger or an executed counterpart of this Agreement
meeting the requirements of the Delaware General Corporation Law; and
(d) The filing with the Secretary of State of California of an
executed Certificate of Merger or an executed counterpart of this Agreement
meeting the requirements of the California General Corporation Law.
The date and time when the Merger becomes effective is referred to in this
Agreement as the "Effective Date of the Merger."
1.3. Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of the Company shall cease and Newco, 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 the Company's
Board of Directors, (c) shall succeed, without other transfer, to all of the
assets, rights, powers and property of the Company in the manner more fully set
forth in Section 259 of the Delaware General Corporation Law, (d) shall continue
to be subject to all of the debts, liabilities and obligations of Newco as
constituted immediately prior to the Effective Date of the Merger, and (e) shall
succeed, without other transfer, to all of the debts, liabilities and
obligations of the Company in the same manner as if Newco 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.
2. Charter Documents, Directors and Officers.
2.1. Certificate of Incorporation. The Amended and Restated Certificate
of Incorporation (the "Restated Certificate") of Newco as in effect immediately
prior to the Effective Date of the Merger shall continue in full force and
effect as the Restated Certificate of the Surviving Corporation until duly
amended in accordance with the provisions thereof and applicable law.
2.2. Bylaws. The Bylaws of Newco 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 the Company
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the
- 2 -
3
Surviving Corporation until their successors shall have been duly elected and
qualified or as otherwise provided by law, the Certificate of Incorporation of
the Surviving Corporation or the Bylaws of the Surviving Corporation.
3. Manner of Conversion of Stock.
3.1. Company Common Stock. Upon the Effective Date of the Merger, each
share of the Company's Common Stock issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by the parties,
the holder of such share or any other person, be converted into and exchanged
for one (1) fully paid and nonassessable share of Common Stock, $0.001 par
value, of the Surviving Corporation.
3.2. Company Preferred Stock. Upon the Effective Date of the Merger, each
share of the Company's Series A, Series B, Series C and Series D Preferred
Stock, issued and outstanding immediately prior thereto, which shares are
convertible into such number of shares of the Company's Common Stock as set
forth in the Company's Articles of Incorporation, as amended, shall, by virtue
of the Merger and without any action by the parties, the holder of such shares
or any other person, be converted into and exchanged for one (1) fully paid and
non-assessable share of Series A, Series B, Series C and Series D Preferred
Stock of the Surviving Corporation, $0.001 par value, respectively, having such
rights, preferences and privileges as set forth in the Restated Certificate of
the Surviving Corporation, which shares 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 the Company's Preferred Stock was convertible
into shares of the Company's Common Stock immediately prior to the Effective
Date of the Merger, subject to adjustment pursuant to the terms of the Restated
Certificate of the Surviving Corporation.
3.3. Company Options and Convertible Securities.
(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of the Company under the Company's 1995
Stock Option Plan, 1998 Stock Option Plan, 1998 Employee Stock Purchase Plan if
any, and all other employee benefit plans of the Company. Each outstanding and
unexercised option, warrant, other right to purchase, or security convertible
into, the Company's Common Stock or Preferred Stock (a "Right") shall become,
subject to the provisions in paragraph (c) hereof, an option, 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
share of the Company's Common Stock or Preferred Stock, 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 Company Right at the Effective Date of
the Merger. This paragraph 3.3(a) shall not apply to the Company's Common Stock
or Preferred Stock. Such Common Stock and Preferred Stock are subject to
paragraph 3.1 and 3.2 hereof, respectively.
(b) A number of shares of the Surviving Corporation's Common Stock
and Preferred Stock shall be reserved for issuance upon the exercise or
conversion of Rights
- 3 -
4
equal to one share of Newco for each share of the Company's Common Stock and
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. In lieu thereof, any fractional
share interests to which a holder of an assumed Right (other than an option
issued pursuant to the Company's 1995 Stock Option Plan, 1998 Stock Option Plan
or 1998 Employee Stock Purchase Plan if any) 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
Company's 1995 Stock Option Plan, 1998 Stock Option Plan or 1998 Employee Stock
Purchase Plan if any, 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.
3.4. Exchange of Certificates.
(a) After the Effective Date of the Merger, each holder of an
outstanding certificate representing shares of the Company's 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 appropriate class and series of the Surviving
Corporation's capital stock into which the surrendered shares were converted as
herein provided. Until so surrendered, each outstanding certificate theretofore
representing shares of the Company's capital stock shall be deemed for all
purposes to represent the number of whole shares of the appropriate class and
series of the Surviving Corporation's capital stock into which such shares of
the Company's capital stock were converted in the Merger.
(b) 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
- 4 -
5
of capital stock of the Surviving Corporation represented by such outstanding
certificate as provided above.
(c) Each certificate representing capital 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 the
Company so converted and given in exchange therefor, unless otherwise determined
by the Board of Directors of the Surviving Corporation in compliance with
applicable laws.
(d) If any certificate for shares of 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 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 the Surviving
Corporation that such tax has been paid or is not payable.
3.5. Fractional Shares. No fractional share interests of the Surviving
Corporation shall be issued. Any fractional share interests to which a holder
would otherwise be entitled shall be aggregated so that no the Company
shareholder shall receive cash in an amount greater than the value of one (1)
full share of Newco Common Stock.
4. General.
4.1. Covenants of Newco. Newco 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 Newco of all of
the franchise tax liabilities of the Company; 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 Newco
or by its successors or assigns, there shall be executed and delivered on behalf
of the Company 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
Newco the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of the Company
and otherwise to carry out the purposes of this Agreement, and the officers and
directors of Newco are fully authorized in the name and on behalf of the Company
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
whatsoever by the Board of Directors of either the Company or Newco, or both,
notwithstanding the approval of
- 5 -
6
this Agreement by the shareholders of the Company or by the sole stockholder of
Newco, or by both.
4.4. Amendment. The Boards of Directors of the parties 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 party 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 party, (b) alter or change any term of the Restated Certificate 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 party.
4.5. Tax Treatment. The parties intend that the Merger be treated as a
tax free reorganization under Section 368 of the Internal Revenue Code.
4.6. Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at 0000 Xxxxxx Xxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle. The Corporation Service Company is the
registered agent of the Surviving Corporation at such address.
4.7. Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 0000 Xxxxx Xxx,
Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000 and copies thereof will be furnished to
any stockholder of either Constituent Corporation, upon request and without
cost.
4.8. Governing Law. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
5. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument.
- 6 -
7
IN WITNESS WHEREOF each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors, has caused this Agreement and
Plan of Merger to be executed by an authorized officer.
"THE COMPANY" "NEWCO"
xxxxxxxx.xxx Corporation, a California xxxxxxxx.xxx Corporation, a Delaware
corporation corporation
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
----------------------------------------- -----------------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer Title: President and Chief Executive Officer
By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------- -----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx
Title: Secretary Title: Secretary
- 7 -
8
CERTIFICATE OF OFFICER
OF
XXXXXXXX.XXX CORPORATION
The undersigned hereby certify that:
1. They are the duly elected and acting President and Secretary of
xxxxxxxx.xxx Corporation., a California corporation (the "Company").
2. The Agreement and Plan of Merger (the "Agreement") of the Company
and xxxxxxxx.xxx Corporation, a Delaware corporation ("Newco"), in the form
attached hereto, was duly approved by the Board of Directors and shareholders of
the Company as of May 20, 1998.
3. The number of outstanding shares of each class entitled to vote is
9,090,000 shares of Common Stock, 1,985,520 shares of Series A Preferred Stock,
2,037,038 shares of Series B Preferred Stock, 3,000,000 shares of Series C
Preferred Stock and 1,153,846 shares of Series D Preferred Stock.
4. The principal terms of the Agreement were approved by the Company by
the vote of a number of shares of each class which equaled or exceeded the vote
required.
5. The percentage vote required of each class is more than 50%.
We further declare under penalty of perjury under the laws of the State of
California that we have read the foregoing certificate, and know the contents
thereof, and that the matters set forth in this certificate are true and correct
of our own knowledge.
Dated: June 10, 1998 By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Secretary
9
CERTIFICATE OF OFFICER
OF
XXXXXXXX.XXX CORPORATION
The undersigned hereby certify that:
1. They are the duly elected and acting President and Secretary of
xxxxxxxx.xxx Corporation, a Delaware corporation (the "Newco").
2. The Agreement of Merger (the "Agreement") of Newco and xxxxxxxx.xxx
Corporation., a California corporation (the "Company"), in the form attached
hereto, was duly approved by the Board of Directors of Newco as of May 20,
1998.
3. There are no outstanding shares of capital stock of Newco.
We further declare under penalty of perjury under the laws of the State of
California that we have read the foregoing certificate, and know the contents
thereof, and that the matters set forth in this certificate are true and correct
of our own knowledge.
Dated: May June 10, 1998 By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Secretary
