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Exhibit 2.3
FORM OF AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER dated as of _________________, 1996
(this "AGREEMENT") involves VIEW TECH DELAWARE, INC., a Delaware corporation
("VIEW TECH-DEL") and VIEW TECH, INC., a California corporation ("VIEW TECH").
View Tech-Del and View Tech are sometimes referred to herein as the
"CONSTITUENT CORPORATIONS."
RECITALS
A. View Tech-Del is a corporation duly organized and
existing under the laws of the State of Delaware.
B. View Tech is a corporation duly organized and existing
under the laws of the State of California.
C. The authorized capital stock of View Tech-Del consists
of Twenty Million (20,000,000) shares of Common Stock, $.0001 par value per
share, of which One Thousand (1,000) shares are issued and outstanding, and
Five Million (5,000,000) shares of Preferred Stock, $.0001 par value per share,
of which no shares are issued and outstanding. View Tech is the sole
stockholder of View Tech-Del.
D. The authorized capital stock of View Tech consists of
Ten Million (10,000,000) shares of Common Stock, par value $.01 ("VIEW TECH
COMMON STOCK"), of which ____________________________________________
(_____________) shares are issued and outstanding, and Five Million shares of
Preferred Stock, par value $.01, of which no shares are outstanding.
E. The Board of Directors of View Tech has determined
that, for the purpose of effecting the reincorporation of View Tech in the
State of Delaware, it is advisable and in the best interests of View Tech that
it merge with and into View Tech-Del upon the terms and conditions herein
provided.
F. The respective Boards of Directors of View Tech and
View Tech-Del have resolved that View Tech be merged under and pursuant to the
General Corporation Law of the State of Delaware and the General Corporation
Law of the State of California into a single corporation existing under the
laws of the State of Delaware.
G. The respective Boards of Directors of View Tech-Del and
View Tech have approved the merger upon the terms and conditions set forth
herein and have approved this Agreement and the Boards of Directors of View
Tech-Del and View Tech have directed that this Agreement be submitted to a vote
of their respective stockholders.
NOW THEREFORE, each Constituent Corporation adopting this
Agreement agrees 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,
View Tech shall be, at the Effective Date (as defined in Paragraph 1.2 below),
merged with and into View Tech-Del ("MERGER"), and the separate existence of
View Tech shall cease and View Tech-Del shall be the surviving corporation (the
"SURVIVING CORPORATION").
1.2 Filing and Effectiveness
The Merger shall become effective when this Agreement, together
with the resolutions of the Boards of Directors of View Tech and View Tech-Del
adopting and approving same, shall have been filed with the Secretary of State
of the State of Delaware (the "EFFECTIVE DATE OF MERGER").
For purposes of California Law, the Merger shall become
effective as to View Tech on the Effective Date of the Merger, upon such filing
in California as is required by Section 1108 of the General Corporation Law of
California, which filing will be made by View Tech and/or View Tech-Del, as
applicable.
1.3 Certificate of Incorporation
Except for the change of the name of the Surviving Corporation
as provided in this paragraph 1.3, the Certificate of Incorporation of View
Tech-Del as in effect immediately prior to the Effective Date of 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.
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From and after the Effective Date of Merger, the Certificate of Incorporation
shall be amended by deleting Article FIRST in its entirety and substituting in
lieu thereof the following: "FIRST: The name of this Corporation is View Tech,
Inc."
1.4 Bylaws
The Bylaws of View Tech-Del as in effect immediately prior to
the Effective Date of 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.
1.5 Agreements
All agreements to which View Tech is a party and which are in
effect immediately prior to the Effective Date of Merger shall continue in full
force and effect and shall be assumed in their entirety by the Surviving
Corporation as of the Effective Date of Merger.
1.6 Directors and Officers
The directors and officers of View Tech-Del immediately prior to
the Effective Date of Merger shall be the directors and officers of the
Surviving Corporation until their successors shall have been duly elected and
qualified or until otherwise as provided by law, the Certificate of
Incorporation of the Surviving Corporation or the Bylaws of the Surviving
Corporation.
1.7 Effect of Merger
Upon the Effective Date of Merger, the separate existence of
View Tech shall cease and View Tech-Del, 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 Merger, shall be subject
to all actions previously taken by the View Tech Board of Directors and shall
succeed, without other transfer, to all of the assets, rights, powers and
property of View Tech in the manner as more fully set forth in Section 259 of
the Delaware General Corporation Law, and (ii) shall continue to be subject to
all of its debts, liabilities and obligations as constituted immediately prior
to the Effective Date of Merger and shall succeed, without other transfer, to
all of the debts, liabilities and obligations of View Tech in the same manner
as if View Tech-Del 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. MANNER OF CONVERSION OF STOCK
2.1 View Tech Securities
Upon the Effective Date of Merger, (i) each share of View Tech
Common Stock, no par value, issued and outstanding immediately prior thereto
shall, by virtue of the Merger and without any action by the holders of such
shares or any other person, be converted into and exchanged for one fully paid
and nonassessable share of Common Stock, $.0001 par value per share, of the
Surviving Corporation, and all options (the "VIEW TECH OPTIONS") to purchase
View Tech Common Stock under the View Tech Stock Option Plan, or issued outside
of such plan, and all warrants to purchase View Tech Common Stock (the "VIEW
TECH WARRANTS"), outstanding immediately prior to the Merger will be assumed by
View Tech Delaware, and will continue to have, and be subject to, the same
terms and conditions of each such option and as set forth in the View Tech
Stock Option Plan, if applicable, immediately prior to the Merger, except that
such options, warrants and conversion rights will be exercisable for such
number of shares of View Tech Delaware Common Stock as is equal to the number
of shares of View Tech Common Stock that were issuable upon exercise of such
options and warrants immediately prior to the Merger.
2.2 View Tech-Del Securities
Upon the Effective Date of Merger, each share of View Tech-Del
Common Stock, par value $.0001, issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by the holder of
such shares or any other person, be cancelled and returned to the status of
authorized but unissued shares.
2.3 Exchange of Certificate
After the Effective Date of Merger, each holder of an
outstanding certificate formerly representing shares of View Tech Common Stock
may at such shareholder's option surrender the same for cancellation to the
Surviving Corporation, and each such holder shall be entitled to receive in
exchange therefor a certificate representing the number of shares of the
Surviving Corporation's Common Stock into which the surrendered shares were
converted as herein provided. Until so surrendered, each outstanding
certificate theretofore representing shares of View Tech Common Stock shall be
deemed for all purposes to represent the number of whole shares of the
Surviving Corporation's Common Stock into which such shares of View Tech were
converted in the Merger. The registered owner on the books and records of the
Surviving Corporation of any such outstanding certificate shall, until such
certificate shall have been surrendered for conversion to the Surviving
Corporation, have and be entitled to exercise any voting and other rights with
respect to, and to receive
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dividends and other distributions upon, the shares of Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
in this paragraph 2.3.
2.4 Legends
Each certificate representing Common Stock of the Surviving
Corporation so issued in the Merger shall bear the same legends, if any, with
respect to restrictions on transferability as the certificates of View Tech so
converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws.
2.5 Endorsement of Surrendered Shares
If any certificate for shares of Common Stock of View Tech-Del
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
party requesting such transfer pay to the Surviving Corporation any transfer or
other taxes payable by reason of the issuance of such new certificate in the
name other than that of the registered holder of the certificate surrendered,
or establish to the satisfaction of View Tech-Del that such tax has been paid
or is not payable.
3. GENERAL
3.1 Further Assurances
View Tech-Del and View Tech each covenants and agrees that it
will, on or before the Effective Date of Merger, take such other actions as may
be required by the California General Corporation Law and/or the Delaware
General Corporation Law.
3.2 Registered Office
The registered office of the Surviving Corporation in the State
of Delaware is located at Corporate Trust Center, 0000 Xxxxxx Xxxxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle, Delaware and Corporation Trust Company is the
registered agent of the Surviving Corporation at such address.
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3.3 Agreement
Copies of this Agreement will be on file at the principal place
of business of the Surviving Corporation at 000 Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, and copies thereof will be furnished to any stockholder of
either Constituent Corporation, upon request and without cost.
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