AGREEMENT AND PLAN OF MERGER OF CYBERDEFENDER CORPORATION, A DELAWARE CORPORATION AND CYBERDEFENDER CORPORATION, A CALIFORNIA CORPORATION
OF
CYBERDEFENDER
CORPORATION,
A
DELAWARE CORPORATION
AND
CYBERDEFENDER
CORPORATION,
A
CALIFORNIA CORPORATION
This
Agreement and Plan of Merger dated as of May 25, 2010 (the “Agreement”) is
entered into by and between CyberDefender Corporation, a California corporation
(“CyberDefender California”), and its wholly-owned subsidiary, CyberDefender
Corporation, a Delaware corporation (“CyberDefender Delaware”). CyberDefender
Delaware and CyberDefender California are sometimes referred to in this
Agreement as the “Constituent Corporations.”
RECITALS
A. CyberDefender
Delaware is a corporation duly organized and existing under the laws of the
State of Delaware and has an authorized capital of 110,000,000 shares,
100,000,000 of which are designated “Common Stock,” $0.001 par value, and
10,000,000 of which are designated “Preferred Stock,” $0.001 par value. As of
the date of this Agreement, 100 shares of CyberDefender Delaware Common Stock
were issued and outstanding, all of which are held by CyberDefender California,
and no shares of Preferred Stock were issued and outstanding.
B. CyberDefender
California is a corporation duly organized and existing under the laws of the
State of California and has an authorized capital of 50,000,000 shares of Common
Stock, no par value. As of May 25, 2010, 25,845,375 shares of CyberDefender
California Common Stock were issued and outstanding.
C. The
Board of Directors of CyberDefender California has determined that, for the
purpose of effecting the reincorporation of CyberDefender California in the
State of Delaware, it is advisable and in the best interests of CyberDefender
California and its shareholders that CyberDefender California merge with and
into CyberDefender Delaware upon the terms and conditions provided in this
Agreement.
D. The
respective Boards of Directors of CyberDefender Delaware and CyberDefender
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective stockholder(s) and, if approved by such
stockholder(s), executed by officers of their respective
corporations.
AGREEMENT
In
consideration of the mutual agreements and covenants set forth herein,
CyberDefender Delaware and CyberDefender California hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
Section
1. Merger. In
accordance with the provisions of this Agreement, the Delaware General
Corporation Law and the California General Corporation Law, CyberDefender
California shall be merged with and into CyberDefender Delaware (the “Merger”),
the separate existence of CyberDefender California shall cease and CyberDefender
Delaware shall be, and is sometimes referred to below as, the “Surviving
Corporation,” and the name of the Surviving Corporation shall be “CyberDefender
Corporation”.
Section 2. Closing. The
closing of this Agreement shall take place at 000 X. 0xx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, XX 00000, as soon as practicable following the
satisfaction of all conditions to closing set forth in Section 3 of this
Agreement (the “Closing”).
Section 3. Conditions to
Closing. The obligations hereunder of both parties
to enter into this Agreement are subject to their satisfaction, at or before the
Closing, of each of the conditions set forth below:
3.1 Adoption and Approval by
Stockholders. Adoption and approval of this
Agreement and the Merger by the stockholder(s) of each Constituent Corporation
in accordance with the applicable requirements of the Delaware General
Corporation Law and the California General Corporation Law; and
3.2 Satisfaction of Conditions
Precedent. The satisfaction or waiver of all of
the conditions precedent to the consummation of the Merger as specified in this
Agreement.
Section 4. Filing and
Effectiveness. Upon the satisfaction of all
conditions to Closing set forth in Section 3 above, the parties shall file,
and the Merger shall become effective upon completion of the filing, with the
Secretary of State of Delaware of an executed Certificate of Ownership and
Merger or an executed counterpart of this Agreement meeting the requirements of
the Delaware General Corporation Law. The date and time when the Merger becomes
effective is referred to in this Agreement as the “Effective Time of the
Merger.”
Section
5. Effect of the
Merger. Upon the Effective Time of the Merger, the
separate existence of CyberDefender California shall cease and CyberDefender
Delaware, as the Surviving Corporation, (a) shall continue to possess all
of its assets, rights, powers and property as constituted immediately prior to
the Effective Time of the Merger, (b) shall be subject to all actions
previously taken by its and CyberDefender California’s Board of Directors,
(c) shall succeed, without other transfer, to all of the assets, rights,
powers and property of CyberDefender California 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 CyberDefender Delaware as constituted immediately prior to the
Effective Time of the Merger and (e) shall succeed, without other transfer,
to all of the debts, liabilities and obligations of CyberDefender California in
the same manner as if CyberDefender Delaware 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.
Section
6. Charter Documents,
Directors and Officers.
6.1 Certificate of
Incorporation. The Certificate of Incorporation of
CyberDefender Delaware as in effect immediately prior to the Effective Time 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.
6.2 Bylaws. The
Bylaws of CyberDefender Delaware as in effect immediately prior to the Effective
Time 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.
6.3 Directors and
Officers. The directors and officers of
CyberDefender Delaware immediately prior to the Effective Time of the Merger
shall be the directors and officers of the 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.
Section
7. Manner of Conversion of
Stock.
7.1 CyberDefender California Common
Stock. Upon the Effective Time of the Merger, each
one share of CyberDefender California 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 share or any other person,
be converted into and exchanged for one fully paid and nonassessable share of
Common Stock, $0.001 par value, of the Surviving Corporation.
7.2 CyberDefender California Options,
Stock Purchase Rights and Convertible Securities.
(a) Upon
the Effective Time of the Merger, the Surviving Corporation shall assume and
continue any and all stock option, stock incentive, employee benefit and other
equity-based award plans heretofore adopted by CyberDefender California (the
“Plans”). Each outstanding and unexercised option, warrant, other right to
purchase, or security convertible into, CyberDefender California Common 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, respectively, on the basis of one share of the
Surviving Corporation’s Common Stock, as the case may be, for each one share of
CyberDefender California Common 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 CyberDefender California Right at the Effective
Time of the Merger. This paragraph 7.2(a) shall not apply to CyberDefender
California Common Stock. Such Common Stock is subject to paragraph 7.1
hereof.
(b) A
number of shares of the Surviving Corporation’s Common Stock shall be reserved
for issuance upon the exercise or conversion of Rights equal to the number of
shares of CyberDefender California Common Stock so reserved immediately prior to
the Effective Time 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 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 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. 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.
7.3 CyberDefender Delaware Common
Stock. Upon the Effective Time of the Merger, each
share of Common Stock, $0.001 par value, of CyberDefender Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by CyberDefender Delaware, CyberDefender California or any other
person, be canceled and returned to the status of authorized but unissued
shares.
7.4 Exchange of
Certificates. After the Effective Time of the
Merger, each holder of an outstanding certificate representing CyberDefender
California Common Stock may, at such holder’s option, surrender the same for
cancellation to Continental Stock Transfer & Trust Company 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 the Surviving Corporation’s Common Stock into which the surrendered
shares were converted as provided herein. Until so surrendered, each outstanding
certificate theretofore representing shares of CyberDefender California 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 CyberDefender California capital stock 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 capital stock of the Surviving
Corporation represented by such outstanding certificate as provided
above.
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 CyberDefender California so converted
and given in exchange therefor, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable
laws.
If any
certificate for shares of the 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.
Section
8. General.
8.1 Covenants of CyberDefender
Delaware. CyberDefender Delaware covenants and
agrees that it will, at or before the Effective Time of the Merger:
(a) Qualify
to do business as a foreign corporation in the State of California and
irrevocably appoint an agent for service of process as required under the
provisions of Section 2105 of the California General Corporation
Law.
(b) File
any and all documents with the California Franchise Tax Board necessary for the
assumption by CyberDefender Delaware of all of the franchise tax liabilities of
CyberDefender California; and
(c) Take
such other actions as may be required by the California General Corporation
Law.
8.2 Further
Assurances. From time to time, as and when
required by CyberDefender Delaware or by its successors or assigns, there shall
be executed and delivered on behalf of CyberDefender 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 CyberDefender Delaware the
title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of CyberDefender
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of CyberDefender Delaware are fully authorized in the
name and on behalf of CyberDefender California or otherwise to take any and all
such action and to execute and deliver any and all such deeds and other
instruments.
8.3 Abandonment. At
any time before the Effective Time 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 CyberDefender California or CyberDefender Delaware,
or both, notwithstanding the approval of this Agreement by the shareholders of
CyberDefender California or by the sole stockholder of CyberDefender Delaware,
or by both.
8.4 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, provided that an amendment
made subsequent to the adoption of this Agreement by the stockholders of either
Constituent Corporation 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 Constituent Corporation, (b) alter or change any term of the
Certificate of Incorporation 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 Constituent
Corporation.
8.5 Registered
Office. The registered office of the Surviving
Corporation in the State of Delaware is located at 0000 Xxxxxxxxxx Xxxx, Xxxx xx
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxx of Delaware 19810-4345. The name of its
registered agent at such address is VCorp Services, LLC.
8.6 Agreement. Executed
copies of this Agreement will be on file at the principal place of business of
the Surviving Corporation at 000 X. 0xx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, XX 00000 and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without
cost.
8.7 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
Delaware, without giving effect to principles of conflicts of law.
8.8 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and both of which together shall constitute one
instrument.
[SIGNATURES
FOLLOW]
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
caused this Agreement to be executed as of this day and year first above
written.
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CYBERDEFENDER
CORPORATION, a
California
corporation
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Chief
Executive Officer
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ATTEST:
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx, Secretary
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CYBERDEFENDER
CORPORATION, a
Delaware
corporation
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Chief
Executive Officer
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ATTEST:
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx,
Secretary
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