EXHIBIT 4.5
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of May 30, 1997, by and between ADOBE SYSTEMS
INCORPORATED, a California corporation ("Adobe California"), and ADOBE SYSTEMS
(DELAWARE) INCORPORATED, a Delaware corporation ("Adobe Delaware"). Adobe
California and Adobe Delaware are sometimes referred to as the "Constituent
Corporations."
The authorized capital stock of Adobe California consists of two hundred
million (200,000,000) shares of Common Stock, no par value, and two million
(2,000,000) shares of Preferred Stock, no par value. The authorized capital
stock of Adobe Delaware, upon effectuation of the transactions set forth in this
Merger Agreement, will consist of two hundred million (200,000,000) shares of
Common Stock, each having a par value of one-hundredth of one cent ($0.0001),
and two million (2,000,000) shares of Preferred Stock, each having a par value
of one-hundredth of one cent ($0.0001).
The directors of the Constituent Corporations deem it advisable and to the
advantage of the Constituent Corporations that Adobe California merge into Adobe
Delaware upon the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that Adobe California
shall merge into Adobe Delaware on the following terms, conditions and other
provisions:
I. TERMS AND CONDITIONS.
1.1 MERGER. Adobe California shall be merged with and into Adobe Delaware
(the "Merger"), and Adobe Delaware shall be the surviving corporation (the
"Surviving Corporation") effective upon the date when this Merger Agreement is
filed with the Secretary of State of Delaware (the "Effective Date").
1.2 NAME CHANGE. On the Effective Date, the name of Adobe Delaware shall
be Adobe Systems Incorporated.
1.3 SUCCESSION. On the Effective Date, Adobe Delaware shall continue its
corporate existence under the laws of the State of Delaware, and the separate
existence and corporate organization of Adobe California, except insofar as it
may be continued by operation of law, shall be terminated and cease.
1.4 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the Constituent Corporations; and all
and
1.
singular rights, privileges, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, of each of the
Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger; provided, however, that the liabilities of the Constituent
Corporations and of their shareholders, directors and officers shall not be
affected and all rights of creditors and all liens upon any property of either
of the Constituent Corporations shall be preserved unimpaired, and any claim
existing or action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgment as if the Merger had not taken place
except as they may be modified with the consent of such creditors and all debts,
liabilities and duties of or upon each of the Constituent Corporations shall
attach to the Surviving Corporation, and may be enforced against it to the same
extent as if such debts, liabilities and duties had been incurred or contracted
by it.
1.5 COMMON STOCK OF ADOBE CALIFORNIA AND ADOBE DELAWARE. On the Effective
Date, by virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, each share of Common Stock of
Adobe California issued and outstanding immediately prior thereto shall be
converted into one (1) fully paid and nonassessable share of the Common Stock of
Adobe Delaware and each share of Common Stock of Adobe Delaware issued and
outstanding immediately prior thereto shall be canceled and returned to the
status of authorized but unissued shares.
1.6 STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock or of the Preferred Stock of Adobe California shall be deemed for
all purposes to evidence ownership of and to represent the shares of Adobe
Delaware into which the shares of Adobe California represented by such
certificates have been converted as herein provided and shall be so registered
on the books and records of the Surviving Corporation or its transfer agents.
The registered owner of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to the Surviving Corporation or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to and to receive
any dividend and other distributions upon the shares of Adobe Delaware evidenced
by such outstanding certificate as above provided.
1.7 OPTIONS. On the Effective Date, the Surviving Corporation will assume
and continue Adobe California's Stock Option Plan, Restricted Stock Option Plan,
Outside Directors Plan, Performance and Restricted Stock Option Plan and any and
all other stock option plans of Adobe California and the outstanding and
unexercised portions of all options to purchase Common Stock of Adobe
California, including without limitation all options outstanding under such
stock plans and any other outstanding options, shall be converted into options
of Adobe Delaware, such that an option for one (1) share of Adobe California
shall be converted into an
2.
option for one (1) share of Adobe Delaware, with no change in the exercise price
of the Adobe Delaware option. No other changes in the terms and conditions of
such options will occur. Effective on the Effective Date, Adobe Delaware hereby
assumes the outstanding and unexercised portions of such options and the
obligations of Adobe California with respect thereto.
1.8 EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving
Corporation shall assume all obligations of Adobe California under any and all
of Adobe California's employee benefit plans, including the Employee Stock
Purchase Plan, in effect as of such date. On the Effective Date, the Surviving
Corporation shall adopt and continue in effect all such employee benefit plans
upon the same terms and conditions as were in effect immediately prior to the
Merger and shall reserve that number of shares of Adobe Delaware Common Stock
with respect to each such employee benefit plan as is proportional to the number
of shares of Adobe California Common Stock (if any) so reserved on the Effective
Date.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of Adobe Delaware in effect on the Effective Date shall
continue to be the Certificate of Incorporation and Bylaws of the Surviving
Corporation, except that Article I of the Certificate of Incorporation and
Bylaws of the Surviving Corporation shall, effective upon the filing of this
Merger Agreement with the Secretary of State of the State of Delaware, be
amended to read in its entirety as follows: "The name of this corporation is
Adobe Systems Incorporated."
2.2 DIRECTORS. The directors of Adobe California immediately preceding
the Effective Date shall become the directors of the Surviving Corporation on
and after the Effective Date to serve until the expiration of their terms and
until their successors are elected and qualified.
2.3 OFFICERS. The officers of Adobe California immediately preceding the
Effective Date shall become the officers of the Surviving Corporation on and
after the Effective Date to serve at the pleasure of its Board of Directors.
III. MISCELLANEOUS.
3.1 FURTHER ASSURANCES. From time to time, and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of Adobe California such deeds and other instruments,
and there shall be taken or caused to be taken by it such further and other
action, as shall be appropriate or necessary in order to vest or perfect in or
to conform of record or otherwise, in the Surviving Corporation the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Adobe California and otherwise
to carry out the purposes of this Merger Agreement, and the officers and
directors of the Surviving Corporation are fully authorized in the name and on
behalf of Adobe California or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
3.
3.2 AMENDMENT. At any time before or after approval by the shareholders
of Adobe California, this Merger Agreement may be amended in any manner (except
that, after the approval of the Merger Agreement by the shareholders of Adobe
California, the principal terms may not be amended without the further approval
of the shareholders of Adobe California) as may be determined in the judgment of
the respective Board of Directors of Adobe Delaware and Adobe California to be
necessary, desirable, or expedient in order to clarify the intention of the
parties hereto or to effect or facilitate the purpose and intent of this Merger
Agreement.
3.3 CONDITIONS TO MERGER. The obligations of the Constituent Corporations
to effect the transactions contemplated hereby is subject to satisfaction of the
following conditions (any or all of which may be waived by either of the
Constituent Corporations in its sole discretion to the extent permitted by law):
(a) the Merger shall have been approved by the shareholders of Adobe
California in accordance with applicable provisions of the General Corporation
Law of the State of California; and
(b) Adobe California, as sole stockholder of Adobe Delaware, shall
have approved the Merger in accordance with the General Corporation Law of the
State of Delaware; and
(c) any and all consents, permits, authorizations, approvals, and
orders deemed in the sole discretion of Adobe California to be material to
consummation of the Merger shall have been obtained.
3.4 ABANDONMENT OR DEFERRAL. At any time before the Effective Date, this
Merger Agreement may be terminated and the Merger may be abandoned by the Board
of Directors of either Adobe California or Adobe Delaware or both,
notwithstanding the approval of this Merger Agreement by the shareholders of
Adobe California or Adobe Delaware, or the consummation of the Merger may be
deferred for a reasonable period of time if, in the opinion of the Boards of
Directors of Adobe California and Adobe Delaware, such action would be in the
best interest of such corporations. In the event of termination of this Merger
Agreement, this Merger Agreement shall become void and of no effect and there
shall be no liability on the part of either Constituent Corporation or its Board
of Directors or shareholders with respect thereto, except that Adobe California
shall pay all expenses incurred in connection with the Merger or in respect of
this Merger Agreement or relating thereto.
3.5 COUNTERPARTS. In order to facilitate the filing and recording of this
Merger Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original.
4.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by the Board of Directors of Adobe California and Adobe Delaware, is hereby
executed on behalf of each said corporation and attested by their respective
officers thereunto duly authorized.
ADOBE SYSTEMS INCORPORATED
A California corporation
By /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx
Chairman of the Board
and Chief Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President, General Counsel
and Secretary
ADOBE SYSTEMS (DELAWARE)
INCORPORATED
A Delaware corporation
By /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx
Chairman of the Board
and Chief Executive Officer
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President, General Counsel
and Secretary
5.
