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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER(hereinafter called the "Merger
Agreement") is made as of March ___, 1997 by and between IL FORNAIO (AMERICA)
CORPORATION, a California corporation ("Il Fornaio California"), and IL FORNAIO
(AMERICA) DELAWARE, a Delaware corporation ("Il Fornaio Delaware"). Il Fornaio
California and Il Fornaio Delaware are sometimes referred to as the
"Constituent Corporations."
The authorized capital stock of Il Fornaio California consists of
fifteen million (15,000,000) shares of Common Stock and three million five
hundred thousand (3,500,000) shares of Preferred Stock. The authorized capital
stock of Il Fornaio Delaware consists of twenty million (20,000,000) shares of
Common Stock, $.001 par value, and five million (5,000,000) shares of Preferred
Stock, $.001 par value.
The directors of the Constituent Corporations deem it advisable and to
the advantage of said corporations that Il Fornaio California merge into Il
Fornaio 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 Il Fornaio
California shall merge into Il Fornaio Delaware on the following terms,
conditions and other provisions:
1. TERMS AND CONDITIONS.
(a) MERGER. Il Fornaio California shall be merged with and into
Il Fornaio Delaware (the "Merger"), and Il Fornaio 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").
(b) NAME CHANGE. On the Effective Date, the name of Il Fornaio
Delaware shall be Il Fornaio (America) Corporation.
(c) SUCCESSION. On the Effective Date, Il Fornaio Delaware shall
continue its corporate existence under the laws of the State of Delaware, and
the separate existence and corporate organization of Il Fornaio California,
except insofar as it may be continued by operation of law, shall be terminated
and cease.
(d) 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 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
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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 stockholders, 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.
(e) COMMON STOCK OF IL FORNAIO CALIFORNIA AND IL FORNAIO DELAWARE.
An the Effective Date, by virtue of the Merger and without any further action
on the part of the Constituent Corporations or their stockholders, (i) each
share of Common Stock of Il Fornaio California issued and outstanding
immediately prior thereto shall be changed and converted into one (1) fully
paid and nonassessable share of Common Stock of Il Fornaio Delaware; and (ii)
each share of Common Stock of Il Fornaio Delaware issued and outstanding
immediately prior thereto shall be canceled and returned to the status of
authorized but unissued shares.
(f) PREFERRED STOCK OF IL FORNAIO CALIFORNIA AND IL FORNAIO
DELAWARE. On the Effective Date, by virtue of the Merger and without any
further action on the part of the Constituent Corporations or their
stockholders, (i) each share of Series A Preferred Stock of Il Fornaio
California issued and outstanding immediately prior thereto shall be changed
and converted into one fully paid and nonassessable share of Series A Preferred
Stock of Il Fornaio Delaware, (ii) each share of Series B Preferred Stock of Il
Fornaio California issued and outstanding immediately prior thereto shall be
changed and converted into one fully paid and nonassessable share of Series B
Preferred Stock of Il Fornaio Delaware, (iii) each share of Series C Preferred
Stock of Il Fornaio California issued and outstanding immediately prior thereto
shall be changed and converted into one fully paid and nonassessable share of
Series C Preferred Stock of Il Fornaio Delaware, (iv) each share of Series D
Preferred Stock of Il Fornaio California issued and outstanding immediately
prior thereto shall be changed and converted into one fully paid and
nonassessable share of Series D Preferred Stock of Il Fornaio Delaware, (v)
each share of Series E Preferred Stock of Il Fornaio California issued and
outstanding immediately prior thereto shall be changed and converted into one
fully paid and nonassessable share of Series E Preferred Stock of Il Fornaio
Delaware, and (vi) each share of Series F Preferred Stock of Il Fornaio
California issued and outstanding immediately prior thereto shall be changed
and converted into one fully paid and non-assessable share of Series F
Preferred Stock of Il Fornaio Delaware.
(g) STOCK CERTIFICATES. On and after the Effective Date, all of
the outstanding certificates which prior to that time represented shares of the
Common Stock and Preferred Stock of Il Fornaio California shall be deemed for
all purposes to evidence ownership of and to represent the shares of Il Fornaio
Delaware into which the shares of Il Fornaio California
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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 Il Fornaio Delaware evidenced by such outstanding certificate as
above provided.
(h) WARRANTS OF IL FORNAIO CALIFORNIA. On and after the Effective
Date, the outstanding Warrants which prior to that time represented Warrants of
Il Fornaio California shall be deemed for all purposes to evidence ownership of
and to represent Warrants of Il Fornaio Delaware and shall be so registered on
the books and records of the Surviving Corporation or its transfer agents.
(i) OPTIONS OF IL FORNAIO CALIFORNIA. On the Effective Date, the
Surviving Corporation will assume and continue all of Il Fornaio California's
stock option plans in existence on the Effective Date, including, but not
limited to the 1997 Non-Employee Directors' Stock Option Plan and the 1997
Equity Incentive Plan, and the outstanding options to purchase Common Stock of
Il Fornaio California, including without limitation all options outstanding
under such stock option plans and any other outstanding options, shall become
options to purchase shares of Common Stock of Il Fornaio Delaware, subject to
applicable adjustment provisions with respect to the number of and price per
share, with no other changes in the terms and conditions of such options.
Effective on the Effective Date, Il Fornaio Delaware hereby assumes the
outstanding and unexercised portions of such options and the obligations of Il
Fornaio California with respect thereto.
(j) STOCK PURCHASE PLAN OF IL FORNAIO CALIFORNIA. On the
Effective Date, the Surviving Corporation will assume all obligations of and
continue Il Fornaio California's Employee Stock Purchase Plan.
(k) EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving
Corporation shall assume all obligations of Il Fornaio California under any and
all employee benefit plans 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 Il Fornaio
Delaware Common Stock with respect to each such employee benefit plan as is
equal to the number of shares of Il Fornaio California Common Stock (if any) so
reserved on the Effective Date.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
(a) CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of Il Fornaio 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 of the Surviving Corporation shall, effective upon the filing of
this Merger
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Agreement with the Secretary of the State of Delaware, be amended to read in
its entirety as follows: "The name of this Corporation is Il Fornaio (America)
Corporation."
(b) DIRECTORS. The directors of Il Fornaio 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.
(c) OFFICERS. The officers of Il Fornaio 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.
3. MISCELLANEOUS.
(a) 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 Il Fornaio 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 Il Fornaio
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 Il Fornaio California or otherwise to
take any and all such action and to execute and deliver any and all such deeds
and other instruments.
(b) AMENDMENT. At any time before or after approval by the
stockholders of Il Fornaio California, this Merger Agreement may be amended in
any manner (except that, after the approval of the Merger Agreement by the
stockholders of Il Fornaio California, the principal terms may not be amended
without the further approval of the stockholders of Il Fornaio California) as
may be determined in the judgment of the respective Board of Directors of Il
Fornaio Delaware and Il Fornaio 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.
(c) CONDITIONS TO MERGER. The obligation 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):
(i) the Merger shall have been approved by the
stockholders of Il Fornaio California in accordance with applicable provisions
of the General Corporation Law of the State of California; and
(ii) Il Fornaio California, as sole stockholder of Il
Fornaio Delaware, shall have approved the Merger in accordance with the General
Corporation Law of the State of Delaware; and
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(iii) any and all consents, permits, authorizations,
approvals, and orders deemed in the sole discretion of Il Fornaio California to
be material to consummation of the Merger shall have been obtained.
(d) 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 Il Fornaio California or Il Fornaio
Delaware or both, notwithstanding the approval of this Merger Agreement by the
stockholders of Il Fornaio California or Il Fornaio Delaware or the prior
filing of this Merger Agreement with the Secretary of State of the State of
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 Il Fornaio
California and Il Fornaio Delaware, such action would be in the best interests
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 stockholders with respect thereto, except that Il Fornaio
California shall pay all expenses incurred in connection with the Merger or in
respect of this Merger Agreement or relating thereto.
(e) 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.
IN WITNESS WHEREO, this Merger Agreement, having first been fully
approved by the Board of Directors of Il Fornaio California and Il Fornaio
Delaware, is hereby executed on behalf of each said corporation and attested by
their respective officers thereunto duly authorized.
IL FORNAIO (AMERICA) CORPORATION,
ATTEST: a California corporation
By:
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Xxxx X. Xxxxxx Xxxxxxxx X. Xxxxxx
Secretary Chairman of the Board and
Chief Executive Officer
IL FORNAIO DELAWARE CORPORATION,
ATTEST: a Delaware corporation
By:
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Xxxx X. Xxxxxx Xxxxxxxx X. Xxxxxx
Secretary Chairman of the Board and
Chief Executive Officer
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