Exhibit 2.1
AGREEMENT AND PLAN OF MERGER OF VIADOR INC.,
A DELAWARE CORPORATION
AND
VIADOR INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of this __ day of June,
1999 (the "Agreement"), is between Viador Inc., a Delaware corporation ("Viador-
Delaware"), and Viador Inc., a California corporation ("Viador-California").
Viador-Delaware and Viador-California are sometimes referred to herein as the
"Constituent Corporations."
RECITALS
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A. Viador-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has a total authorized capital stock of
Seventy-Five Million (75,000,000 ) shares. The number of shares of Preferred
Stock of Viador-Delaware authorized to be issued is Twenty-Five Million
(25,000,000), par value $0.001, of which Three Million Seven Hundred Three
Thousand Seven Hundred Sixty-Four (3,703,764) shares have been designated Series
A Preferred Stock (the "Series A Preferred Stock"), Eight Million (8,000,000)
shares have been designated Series B Preferred Stock (the "Series B Preferred
Stock"), Six Million (6,000,000) shares have been designated Series C Preferred
Stock (the "Series C Preferred Stock"). No shares of Preferred Stock were
outstanding as of the date hereof and prior to giving effect to the transactions
contemplated hereby. The number of shares of Common Stock authorized to be
issued is Fifty Million (50,000,000), par value $0.001. As of the date hereof,
and before giving effect to the transactions contemplated hereby, One Thousand
(1,000) shares of Common Stock were issued and outstanding, all of which were
held by Viador-California.
B. Viador-California is a corporation duly organized and existing
under the laws of the State of California and has a total authorized capital
stock of Seventy-Five Million (75,000,000 ) shares. The number of shares of
Preferred Stock of Viador-California authorized to be issued is Twenty-Five
Million (25,000,000), par value $0.001, of which Three Million Seven Hundred
Three Thousand, Seven Hundred Sixty Four (3,703,764) shares have been designated
Series A Preferred Stock (the "Series A Preferred Stock"), Eight Million
(8,000,000) shares have been designated Series B Preferred Stock (the "Series B
Preferred Stock"), Six Million (6,000,000) shares have been designated Series C
Preferred Stock (the "Series C Preferred Stock"). The number of shares of Common
Stock authorized to be issued is Fifty Million (50,000,000), par value $0.001.
As of the date hereof, and before giving effect to the transactions contemplated
hereby, three million seven hundred three thousand seven hundred sixty four
(3,703,764) shares of Series A Preferred Stock were issued and outstanding, six
million five hundred eighty-six thousand seven hundred fourteen (6,586,714)
shares of Series B Preferred Stock were issued and outstanding, five million
five hundred thirty-two thousand seven hundred eighty-seven (5,532,787) shares
of Series C Preferred Stock were issued and outstanding, and eleven million one
hundred thirty-six thousand eighty-five (11,136,085) shares of Common Stock were
issued and outstanding.
C. The Board of Directors of Viador-California has determined that,
for the purpose of effecting the reincorporation of Viador-California in the
State of Delaware, it is
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advisable and in the best interests of Viador-California that Viador-California
merge with and into Viador-Delaware upon the terms and conditions herein
provided.
D. The respective Boards of Directors and Shareholders of Viador-
Delaware and Viador-California 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, Viador-Delaware and Viador-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
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General Corporation Law of the State of Delaware and the General Corporation Law
of the State of California, Viador-California shall be merged with and into
Viador-Delaware (the "Merger"), the separate existence of Viador-California
shall cease and Viador-Delaware shall be, and is herein sometimes referred to
as, the "Surviving Corporation," and the name of the Surviving Corporation shall
be Viador Inc.
1.2 Filing and Effectiveness. The Merger shall become effective when
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the following actions shall have been completed:
(a) An executed Certificate of Merger or an executed counterpart
of this Agreement meeting the requirements of the General Corporation Law of the
State of Delaware shall have been filed with the Secretary of State of the State
of Delaware; and
(b) An executed counterpart of the Certificate of Merger, an
executed counterpart of this Agreement or any other document filed with the
Secretary of State of the State of Delaware pursuant to section (a) above, 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
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separate existence of Viador-California shall cease and Viador-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
Viador-California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Viador-California
in the manner more fully set forth in Section 259 of the General Corporation Law
of the State of Delaware, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of Viador-Delaware 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 Viador-California
in the same manner as if Viador-Delaware had itself incurred them, all as more
fully provided under the applicable provisions of the General Corporation Law of
the State of Delaware and the General Corporation Law of the State of
California.
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II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Amended and Restated
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Certificate of Incorporation of Viador-Delaware as in effect immediately prior
to the Effective Date of the Merger (the "Certificate of Incorporation") 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.
2.2 Bylaws. The Bylaws of Viador-Delaware as in effect immediately
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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 Viador-
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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 Viador-California Common Shares. Upon the Effective Date of the
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Merger, each share of Viador-California Common Stock, no par value, 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 two thirds (2/3) of one (1)
fully paid and nonassessable share of Common Stock, par value $0.001 per share,
of the Surviving Corporation. No fractional share interests of the Surviving
Corporation Common Stock shall be issued but shall, instead, be paid in cash by
Viador-Delaware to the holder of such shares.
3.2 Viador-California Preferred Shares.
(a) Series A Preferred Stock. Upon the Effective Date of the
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Merger, each share of Series A Preferred Stock of Viador-California, no par
value, issued and outstanding immediately prior to the Merger, which shares are
convertible into such number of shares of Viador-California Common Stock as set
forth in the Articles of Incorporation of Viador-California, as amended, 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 or exchanged
for two thirds (2/3) of one (1) fully paid and nonassessable share of Series A
Preferred Stock of the Surviving Corporation, par value $0.001 per share, having
such rights, preferences and privileges as set forth in the Certificate of
Incorporation of the Surviving Corporation.
(b) Series B Preferred Stock. Upon the Effective Date of the
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Merger, each share of Series B Preferred Stock of Viador-California, no par
value, issued and outstanding immediately prior to the Merger, which shares are
convertible into such number of shares of Viador-California Common Stock as set
forth in the Articles of Incorporation of Viador-California, as amended, 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 or exchanged
for
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two thirds (2/3) of one (1) fully paid and nonassessable share of Series B
Preferred Stock of the Surviving Corporation, par value $0.001 per share,
respectively, having such rights, preferences and privileges as set forth in the
Certificate of Incorporation of the Surviving Corporation.
(c) Series C Preferred Stock. Upon the Effective Date of the
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Merger, each share of Series C Preferred Stock of Viador-California, no par
value, issued and outstanding immediately prior to the Merger, which shares are
convertible into such number of shares of Viador-California Common Stock as set
forth in the Articles of Incorporation of Viador-California, as amended, 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 or exchanged
for [two thirds (2/3) of one (1)] fully paid and nonassessable share of Series C
Preferred Stock of the Surviving Corporation, par value $0.001 per share,
respectively, having such rights, preferences and privileges as set forth in the
Certificate of Incorporation of the Surviving Corporation.
3.3 Viador-California Stock Option Plans.
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(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of Viador-California under its 1997
Stock Option/Stock Issuance Plan, 1999 Stock Incentive Plan and 1999 Employee
Stock Purchase Plan and any other stock option grants, purchase rights or plans
(collectively, the "Plans"). Each outstanding and unexercised option to purchase
Viador-California Common Stock (an "Option") under the Plans shall become,
subject to the provisions in paragraph (c) hereof, an option to purchase the
Surviving Corporation's Common Stock, on the basis of [two thirds (2/3) of one
(1)] share of the Surviving Corporation's Common Stock for each one (1) share of
Viador-California Common Stock issuable pursuant to any such option, on the same
terms and conditions and at an exercise price reflecting the [three-for-two (3
for 2)] ratio described above.
(b) [Two thirds (2/3) of one (1)] share of the Surviving
Corporation's Common Stock shall be reserved for issuance upon the exercise of
each Option to purchase one (1) share of Viador-Delaware Common Stock so
reserved immediately prior to the Effective Date of the Merger.
(c) 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 Option holders pursuant to the assumption of their Options.
3.4 Warrants of Viador-California.
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(a) Upon the effective date of the Merger, the outstanding
warrants which prior to that time represented warrants of Viador-California (the
"Warrants") shall be deemed for all purposes to evidence ownership of and to
represent Warrants of Viador-Delaware (each Warrant of Viador-Delaware being
exercisable to purchase shares of stock of Viador-Delaware in the amount and at
the exercise price of the Warrant of Viador-California) and shall be so
registered on the books and records of Viador-Delaware or its transfer agents.
3.5 Viador-Delaware Common Stock. Upon the Effective Date of the
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Merger, each share of Common Stock, par value $0.001 per share, of Viador-
Delaware issued and outstanding immediately prior thereto shall, by virtue of
the Merger and without any action by
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Viador-Delaware, or the holder of such shares or any other person, be cancelled
and returned to the status of authorized and unissued shares of Common Stock.
3.6 Exchange of Certificates. After the Effective Date of the
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Merger, each holder of an outstanding certificate representing shares of Viador-
California Common Stock or Preferred Stock may be asked to surrender the same
for cancellation to the Company, and each such holder shall be entitled to
receive in exchange therefor a certificate or certificates representing the
number of shares of the Surviving Corporation's Common Stock or 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 Viador-California Common Stock or Preferred Stock shall
be deemed for all purposes to represent the number of shares of the Surviving
Corporation's Common Stock or Preferred Stock, respectively, into which such
shares of Viador-California Common Stock or Preferred Stock, as the case may be,
were converted in the Merger.
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 of Common Stock or
Preferred Stock of the Surviving Corporation represented by such outstanding
certificate as provided above.
Each certificate representing Common Stock or Preferred 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
Viador-California so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws, or other such additional legends as agreed upon by the
holder and the Surviving Corporation.
If any certificate for shares of Viador-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 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 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 Viador-Delaware that
such tax has been paid or is not payable.
IV. GENERAL
4.1 Further Assurances. From time to time, as and when required by
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Viador-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Viador-California 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 Viador-Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of
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Viador-California and otherwise to carry out the purposes of this Agreement, and
the officers and directors of Viador-Delaware are fully authorized in the name
and on behalf of Viador-California or otherwise to take any and all such action
and to execute and deliver any and all such deeds and other instruments.
4.2 Abandonment. At any time before the Effective Date of the
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Merger, this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either Viador-California or of
Viador-Delaware, or of both, notwithstanding the approval of this Agreement by
the shareholders of Viador-California or the sole stockholder of Viador-
Delaware.
4.3 Amendment. The Boards of Directors of the Constituent
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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, 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.
4.4 Registered Office. The registered office of the Surviving
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Corporation in the State of Delaware is 0000 Xxxxxx Xxxx, Xxxx xx Xxxxxxxxxx,
Xxxxxx of Xxx Xxxxxx, XX 00000 and the Corporation Service Company is the
registered agent of the Surviving Corporation at such address.
4.5 Agreement. Executed copies of this Agreement will be on file at
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the principal place of business of the Surviving Corporation at 000 Xxxxxx
Xxxxxx, Xxx Xxxxx, XX 00000, and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
4.6 Governing Law. This Agreement shall in all respects be
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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
General Corporation Law of the State of California.
4.7 Counterparts. In order to facilitate the filing and recording of
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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 the
resolutions of the Board of Directors of Viador Inc., a Delaware corporation,
and Viador Inc., a California corporation, is hereby executed on behalf of each
of such two corporations and attested by their respective officers thereunto
duly authorized.
VIADOR INC.
a Delaware corporation
By:___________________________________
Xxxx X. Xxxx
President
ATTEST:
___________________________
Xxxx X. Xxxxxxxx
Chief Financial Officer
VIADOR INC.,
a California corporation
By:___________________________________
Xxxx X. Xxxx,
President
ATTEST:
___________________________
Xxxx X. Xxxxxxxx
Chief Financial Officer
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