1
EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of March 28, 2000 (the
"Agreement"), is entered into between Avistar Systems Corporation, a Delaware
corporation ("Avistar-Delaware") and Avistar Systems Corporation, a Nevada
corporation ("Avistar-Nevada"). Avistar-Delaware and Avistar-Nevada are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. Avistar-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 211,000,000
shares. Of the authorized capital, 675,863 are designated Non-Voting Common
Stock, $0.001 par value (the "Avistar-Delaware Non-Voting Common Stock") and
124,324,137 shares are designated Common Stock, $0.001 par value
("Avistar-Delaware Common Stock"). Of the authorized capital, 86,000,000 are
designated as "Preferred Stock," $0.001 par value. Of the Preferred Stock,
80,000,000 of the authorized shares are designated as "Series A Preferred Stock"
("Avistar-Delaware Series A Preferred Stock"), 5,324,137 of the authorized
shares of Preferred Stock are designated as "Series B-1 Preferred Stock"
("Avistar-Delaware Series B-1 Preferred Stock") and 675,863 of the authorized
shares of Preferred Stock are designated as "Series B-2 Preferred Stock"
("Avistar-Delaware Series B-2 Preferred Stock"). As of the date of this
Agreement, 1,000 shares of Avistar-Delaware Common Stock were issued and
outstanding, all of which were held by Avistar-Nevada and no shares of Preferred
Stock were outstanding.
B. Avistar-Nevada is a corporation duly organized and existing under the
laws of the State of Nevada and has an authorized capital of 211,000,000 shares.
Of the authorized capital, 675,863 are designated Non-Voting Common Stock,
$0.001 par value (the "Avistar-Nevada Non-Voting Common Stock") and 124,324,137
shares are designated Common Stock, $0.001 par value ("Avistar-Nevada Common
Stock"). Of the authorized capital, 86,000,000 shares are designated as
"Preferred Stock," $0.001. Of the Preferred Stock, 80,000,000 of the authorized
shares are designated as "Series A Preferred Stock" ("Avistar-Nevada Series A
Preferred Stock"), 5,324,137 of the authorized shares of Preferred Stock are
designated as "Series B-1 Preferred Stock" ("Avistar-Nevada Series B-1 Preferred
Stock") and 675,863 of the authorized shares of Preferred Stock are designated
as "Series B-2 Preferred Stock" ("Avistar-Nevada Series B-2 Preferred Stock").
As of March 28, 2000, the effective date of the Action by Written Consent of
Shareholders by which this Agreement was approved by the shareholders of
Avistar-Nevada, 8,356,652 shares of Avistar-Nevada Common Stock were issued and
outstanding, no shares of Avistar-Nevada Non-Voting Common Stock were issued or
outstanding, 80,000,000 shares of Avistar-Nevada Series A Preferred Stock were
issued and outstanding, 4,660,980 shares of Avistar-Nevada Series B-1 Preferred
Stock were issued and outstanding and 675,863 shares of Avistar-Nevada Series
B-2 Preferred Stock were issued and outstanding.
C. The Board of Directors of Avistar-Nevada has determined that, for the
purpose of effecting reincorporation of Avistar-Nevada in the State of Delaware,
it is advisable and in the best interests of Avistar-Nevada and its shareholders
that Avistar-Nevada merge with and into Avistar-Delaware upon the terms and
conditions provided herein.
2
D. The respective Boards of Directors of Avistar-Delaware and
Avistar-Nevada have approved this Agreement and have directed that this
Agreement be executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Avistar-Delaware and Avistar-Nevada hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
1. MERGER
(a) Merger. In accordance with the provisions of this Agreement,
the Delaware General Corporation Law and the Nevada Revised Statutes,
Avistar-Nevada shall be merged with and into Avistar-Delaware (the "Merger"),
the separate existence of Avistar-Nevada shall cease and Avistar-Delaware shall
be, and is herein sometimes referred to as, the "Surviving Corporation," and the
name of the Surviving Corporation shall be Avistar-Delaware Corporation.
(b) Filing and Effectiveness. The Merger shall become effective
when the following actions shall have been completed:
(i) This Agreement and Merger was adopted and approved
by the stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the Nevada Revised
Statutes on March 28, 2000 and March 28, 2000, respectively;
(ii) 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;
(iii) The executed Agreement and Plan of Merger meeting
the requirements of the Delaware General Corporation Law shall have been filed
with the Secretary of State of the State of Delaware; and
(iv) With respect to Avistar-Nevada, an executed
Agreement and Plan of Merger meeting the requirements of the Nevada Revised
Statutes shall have been filed with the Secretary of State of the State of
Nevada.
Pursuant to Section 251 of the Delaware General Corporation Law
and the Nevada Revised Statutes, the date and time when the Merger shall become
effective, shall be the date upon which subsections (i), (ii) and (iii) of this
Section 1(b) are satisfied and as to Avistar-Nevada on the day subsection (iv)
is satisfied, is herein called the "Effective Date of the Merger."
(c) Effect of the Merger. Upon the Effective Date of the Merger,
the separate existence of Avistar-Nevada shall cease and Avistar-Delaware, 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 the Merger, (ii) shall be subject to all actions previously taken by its
and Avistar-Nevada's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and properties of Avistar-Nevada
in the manner as more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of its
-2-
3
debts, liabilities and obligations as constituted immediately prior to the
Effective Date of the Merger, and (v) shall succeed, without other transfer, to
all of the debts, liabilities and obligations of Avistar-Nevada in the same
manner as if Avistar-Delaware had itself incurred them, all as more fully
provided under the applicable provisions of the Delaware General Corporation Law
and the Nevada General and Business Corporation Law.
2. CHARTER DOCUMENTS DIRECTORS AND OFFICERS
(a) Certificate of Incorporation. The Certificate of
Incorporation of Avistar-Delaware as in effect immediately prior to the
Effective Date of the 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.
(b) Bylaws. The Bylaws of Avistar-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.
(c) Directors and Officers. The directors and officers of
Avistar-Nevada 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.
3. MANNER OF CONVERSION OF STOCK
(a) Avistar-Nevada Common Stock. Upon the Effective Date of the
Merger, each share of Avistar-Nevada 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 shares or any other person,
be converted into and exchanged for 1 share of fully paid and nonassessable
Common Stock, $0.001 par value, of Avistar-Delaware. No fractional share
interests of Avistar-Delaware Common Stock shall be issued. In lieu thereof, any
fractional shares of the Avistar-Delaware Common Stock that would otherwise be
issuable to holders of Avistar-Nevada Common Stock (after aggregating all such
shares of Avistar-Delaware's Common Stock to which each holder is entitled)
shall be rounded up to the nearest whole share.
(b) Avistar-Nevada Non-Voting Common Stock. Upon the Effective
Date of the Merger, each share of Avistar-Nevada Non-Voting 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 shares or
any other person, be converted into and exchanged for 1 share of fully paid and
nonassessable Non-Voting Common Stock, $0.001 par value, of Avistar-Delaware. No
fractional share interests of Avistar-Delaware Non-Voting Common Stock shall be
issued. In lieu thereof, any fractional shares of the Avistar-Delaware
Non-Voting Common Stock that would otherwise be issuable to holders of
Avistar-Nevada Non-Voting Common Stock (after aggregating all such shares of
Avistar-Delaware's Non-Voting Common Stock to which each holder is entitled)
shall be rounded up to the nearest whole share.
-3-
4
(c) Avistar-Nevada Series A Preferred Stock. Upon the Effective
Date of the Merger, each share of Avistar-Nevada Series A 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 share of fully paid
and nonassessable Series A Preferred Stock, $0.001 par value, of
Avistar-Delaware.
(d) Avistar-Nevada Series B-1 Preferred Stock. Upon the
Effective Date of the Merger, each share of Avistar-Nevada 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 share
of fully paid and nonassessable Series B-1 Preferred Stock, $0.001 par value, of
Avistar-Delaware.
(e) Avistar-Nevada Series B-2 Preferred Stock. Upon the
Effective Date of the Merger, each share of Avistar-Nevada Series B-2 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 share
of fully paid and nonassessable Series B-2 Preferred Stock, $0.001 par value, of
Avistar-Delaware.
(f) Avistar-Nevada Options, Warrants, Stock Purchase Rights and
Convertible Securities.
(i) Upon the Effective Date of the Merger,
Avistar-Delaware shall assume the obligations of Avistar-Nevada under, and
continue, the option plans (including without limitation the Avistar-Nevada 1997
Stock Option Plan, as amended through the date hereof (the "Stock Plan") and all
other employee benefit plans of Avistar-Nevada. Each outstanding and unexercised
option, warrant, other right to purchase or security convertible into
Avistar-Nevada Common Stock (a "Right") shall become, subject to the provisions
in paragraph (c) hereof, an option, warrant, right to purchase or a security
convertible into Avistar-Delaware Common Stock on the basis of 1 share of
Avistar-Delaware's Common Stock, for each one share of Avistar-Nevada Common
Stock issuable pursuant to any such Avistar-Nevada Right, rounded down to the
nearest whole share, on the same terms and conditions and at an exercise price
equal to the exercise price applicable to any such Avistar-Nevada Right at the
Effective Date of the Merger divided by 1, rounded up to the nearest whole cent.
(ii) A number of shares of Avistar-Delaware's Common
Stock shall be reserved for issuance upon the exercise of options, warrants,
stock purchase rights and convertible securities equal to 1 times the number of
shares of Avistar-Nevada Common Stock so reserved immediately prior to the
Effective Date of the Merger.
(iii) Each Right so assumed by Avistar-Delaware under
this Agreement shall continue to have, and be subject to, the same terms and
conditions set forth in the Stock Plan or other governing agreement, as the case
may be, and/or as provided in the respective agreements governing such Rights
immediately prior to the Effective Date of the Merger.
-4-
5
(iv) It is the intention of the parties that the Rights
assumed by Avistar-Delaware qualify following the Effective Date of the Merger
as incentive stock options as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), to the extent the Rights qualified as
incentive stock options immediately prior to the Effective Date of the Merger.
In addition, as "additional benefits" (within the meaning of Section 424(a)(2)
of the Internal Revenue Code, as amended) shall be accorded to the optionees
pursuant to the assumption of these options.
(v) Promptly following the Effective Date of the Merger,
Avistar-Delaware will issue to each holder of outstanding Rights a document
evidencing the foregoing assumption of such Rights by Avistar-Delaware.
(vi) At the Effective Date of the Merger, Avistar-Nevada
shall assign to Avistar-Delaware any and all rights of repurchase pertaining to
shares of Avistar-Nevada Common Stock issued upon exercise of stock options,
pursuant to stock purchase agreements or otherwise.
(g) Avistar-Delaware Common Stock. Upon the Effective Date of
the Merger, each share of Common Stock, $0.001 par value, of Avistar-Delaware
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 canceled and returned to the status of authorized
but unissued shares.
4. Exchange of Certificates. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of Avistar-Nevada
Common Stock, Avistar-Nevada Non-Voting Common Stock, Avistar-Nevada Series A
Preferred Stock, Avistar-Nevada Series B-1 Preferred Stock or Avistar-Nevada
Series B-2 Preferred Stock may, at such shareholder's option, surrender the same
for cancellation to such institution as Avistar-Delaware shall appoint at the
time to act 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 Avistar-Delaware Common Stock,
Avistar-Delaware Non-Voting Common Stock, Avistar-Delaware Series A Preferred
Stock, Avistar-Delaware Series B-1 Preferred Stock or Avistar-Delaware Series
B-2 Preferred Stock, as the case may be, into which the surrendered shares were
converted as herein provided. Until so surrendered, each outstanding certificate
theretofore representing shares of Avistar-Nevada Common Stock, Avistar-Nevada
Non-Voting Common Stock, Avistar-Nevada Series A Preferred Stock, Avistar-Nevada
Series B-1 Preferred Stock or Avistar-Nevada Series B-2 Preferred Stock shall be
deemed for all purposes to represent the number of whole shares of
Avistar-Delaware Common Stock, Avistar-Delaware Non-Voting Common Stock,
Avistar-Delaware Series A Preferred Stock, Avistar-Delaware Series B-1 Preferred
Stock or Avistar-Delaware Series B-2 Preferred Stock into which such shares of
Avistar-Nevada Common Stock, Avistar-Nevada Non-Voting Common Stock,
Avistar-Nevada Series A Preferred Stock, Avistar-Nevada Series B-1 Preferred
Stock or Avistar-Nevada B-2 Preferred Stock were converted in the Merger.
The registered owner on the books and records of Avistar-Delaware or the
Exchange Agent of any such outstanding certificate, until such certificate shall
have been surrendered for transfer or conversion or otherwise accounted for to
Avistar-Delaware or the Exchange Agent, shall have and be entitled to exercise
any voting and other rights with respect to and to receive dividends and other
distributions upon the shares of Avistar-Delaware Common Stock, Avistar-Delaware
Non-Voting Common Stock, Avistar-Delaware Series A Preferred Stock,
Avistar-Delaware Series B-1 Preferred
-5-
6
Stock and Avistar-Delaware Series B-2 Preferred Stock represented by such
outstanding certificate as provided above.
Each certificate representing Avistar-Delaware Common Stock,
Avistar-Delaware Non-Voting Common Stock, Avistar-Delaware Series A Preferred
Stock, Avistar-Delaware Series B-1 Preferred Stock or Avistar-Delaware Series
B-2 Preferred Stock so issued in the Merger shall bear the same legends, if any,
with respect to the restrictions on transferability as the certificates of
Avistar-Nevada so converted and given in exchange therefor, unless otherwise
determined by the Board of Directors of Avistar-Delaware in compliance with
applicable laws.
If any certificate for shares of Avistar-Delaware Common Stock,
Avistar-Delaware Non-Voting Common Stock, Avistar-Delaware Series A Preferred
Stock, Avistar-Delaware Series B-1 Preferred Stock or Avistar-Delaware Series
B-2 Preferred 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 Avistar-Delaware
that such tax has been paid or is not payable.
5. GENERAL
(a) Additional Covenants. Avistar-Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
(i) qualify to do business as a foreign corporation in
the State of Nevada, and in connection therewith irrevocably appoint an agent
for service of process as required under Section 351.458 of the Nevada Revised
Statutes;
(ii) file any and all documents with the appropriate tax
authority of the State of Nevada necessary for the assumption by
Avistar-Delaware of all of the corporate and/or franchise tax liabilities of
Avistar-Nevada; and
(iii) such other actions as may be required by the
Nevada Revised Statutes.
(b) Further Assurances. From time to time, as and when required
by Avistar-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Avistar-Nevada 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 Avistar-Delaware the title to and possession of all
the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of Avistar-Nevada and otherwise to carry out the
purposes of this Agreement, and the officers and directors of Avistar-Delaware
are fully authorized in the name and on behalf of Avistar-Nevada or otherwise to
take any and all such action and to execute and deliver any and all such deeds
and other instruments.
(c) 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
-6-
7
Board of Directors of Avistar-Delaware or Avistar-Nevada, notwithstanding the
approval of this Agreement by the shareholders of Avistar-Delaware or
Avistar-Nevada, or by both.
(d) 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 Secretary of State of the
State of Delaware and the Secretary of State of the State of Nevada, provided
that an amendment made subsequent to the adoption of this Agreement by the
stockholders of either Constituent Corporation shall not: (1) 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, (2) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Merger, or (3) 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 or series of capital stock of any Constituent Corporation.
(e) Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx
of Xxx Xxxxxx, Xxxxxxxx 00000 and The Corporation Trust Company is the
registered agent of the Surviving Corporation at such address.
(f) Agreement. Executed copies of this Agreement will be on file
at the principal place of business of the Surviving Corporation at 000 Xxxx
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000 and copies thereof
will be furnished to any shareholder of either Constituent Corporation, upon
request and without cost.
(g) 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
Nevada Revised Statutes.
(h) 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.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
-7-
8
IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of Avistar-Delaware and Avistar-Nevada,
is hereby executed on behalf of each of such corporations and attested by their
respective officers thereunto duly authorized.
AVISTAR SYSTEMS CORPORATION
a Delaware corporation
By:
---------------------------------
ATTEST:
-----------------------------------
AVISTAR SYSTEMS CORPORATION
a Nevada corporation
By:
---------------------------------
ATTEST:
-----------------------------------
-8-
