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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered
into as of __________, 1998 by and between American Xtal Technology, a
California corporation ("XXX California"), and American Xtal Technology Delaware
Corporation, a Delaware corporation ("XXX Delaware").
WITNESSETH:
WHEREAS, XXX Delaware is a corporation duly organized and existing
under the laws of the State of Delaware;
WHEREAS, XXX California is a corporation duly organized and existing
under the laws of the State of California;
WHEREAS, on the date of this Merger Agreement, XXX Delaware has
authority to issue 1,000 shares of Common Stock, par value $0.001 per share (the
"XXX Delaware Common Stock"), of which _____ shares are issued and outstanding
and owned by XXX California;
WHEREAS, on the date of this Merger Agreement, XXX California has
authority to issue 100,000,000 shares of Common Stock (the "XXX California
Common Stock"), of which ____ shares are issued and outstanding, and 25,000,000
shares of Preferred Stock (the "XXX California Preferred Stock"), of which
4,924,817 shares are designated as Series A Preferred Stock, 4,003,921 shares
are designated as Series B Preferred Stock and 1,200,000 shares are designated
as Series C Preferred Stock and 4,924,817 shares of Series A Preferred Stock are
issued and outstanding, 4,003,920 shares of Series B Preferred Stock are issued
and outstanding and 1,200,000 shares of Series C Preferred Stock are issued and
outstanding;
WHEREAS, the respective Boards of Directors for XXX Delaware and XXX
California have determined that, for the purpose of effecting the
reincorporation of XXX California in the State of Delaware, it is advisable and
to the advantage of said two corporations and their stockholders that XXX
California merge with and into XXX Delaware upon the terms and conditions herein
provided; and
WHEREAS, the respective Boards of Directors of XXX Delaware and XXX
California, the stockholders of XXX California, and the sole stockholder of XXX
Delaware have adopted and approved this Merger Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, XXX California and XXX Delaware hereby agree to merge as
follows:
1. Merger. XXX California shall be merged with and into XXX Delaware,
and XXX Delaware shall survive the merger ("Merger"), effective upon the date
when this Merger Agreement is made effective in accordance with applicable law
(the "Effective Date").
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2. Governing Documents. The Certificate of Incorporation of XXX Delaware
shall be amended to read in full as follows:
FIRST: The name of the Corporation is American Xtal Technology,
Inc. (hereinafter sometimes referred to as the
"Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is Incorporating Services, Ltd., 00
Xxxx Xxxxx Xxxxxx, xx xxx Xxxx xx Xxxxx, Xxxxxx of Kent.
The name of the registered agent at that address is
Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized
under the General Corporation Law of Delaware.
FOURTH:
STOCK
This Corporation is authorized to issue two classes of shares, which
shall be known as Common Stock and Preferred Stock. The total number of shares
of Common Stock which this Corporation is authorized to issue is 100,000,000,
$0.001 par value per share, and the total number of shares of Preferred Stock
which this Corporation is authorized to issue is 25,000,000, $0.001 par value
per share, of which 4,924,817 shares are designated as Series A Preferred Stock
(the "Series A Preferred"), 4,003,921 shares are designated as Series B
Preferred Stock (the "Series B Preferred"), and 1,200,000 shares are designated
as Series C Preferred Stock (the "Series C Preferred"). The remaining Preferred
Stock may be issued from time to time in one or more additional series. The
Board of Directors is authorized within the limitations and restrictions stated
in these Amended and Restated Certificate of Incorporation (i) to determine and
alter the rights, preferences, privileges, and restrictions granted to or
imposed upon any wholly unissued series of Preferred Stock other than the Series
A Preferred, the Series B Preferred and the Series C Preferred and the number of
shares constituting any such series and the designation thereof, or any of them;
and (ii) to increase or decrease (but not below the number of shares of such
series then outstanding) the number of shares of any such series subsequent to
the issue of shares of that series. If the number of shares of any such series
of Preferred Stock shall be so decreased, the shares constituting such decrease
shall resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series. This Corporation shall
from time to time in accordance with the laws of the State of Delaware increase
the authorized amount of its Common Stock if at any time the number of shares of
Common Stock remaining unissued and available for issuance shall not be
sufficient to permit conversion of the Preferred Stock in accordance with the
applicable conversion provisions. References hereafter to "Preferred Stock"
shall mean the Series A Preferred, the Series B Preferred and the Series C
Preferred collectively.
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The rights, preferences, privileges and restrictions granted to or
imposed upon the respective classes of shares or the holders thereof are as
follows:
1. Dividend Preference. The holders of Preferred Stock shall be entitled
to receive, out of funds legally available therefor, dividends at the rate of
(i) $0.01 per annum for each share of Series A Preferred held by them, (ii)
$0.016 per annum for each share of Series B Preferred held by them, and (iii)
$0.15 per annum for each share of Series C Preferred held by them, payable, when
and as declared by the Board, in preference and priority to the payment of
dividends on any shares of Common Stock. The right to such dividends shall not
be cumulative, and no right shall accrue to the holders of Preferred Stock by
reason of the fact that dividends are not declared or paid in any previous
fiscal year were sufficient to pay such dividends in whole or in part. No
dividends may be paid on any series of Preferred Stock unless the same
percentage of the respective dividend preference is also paid to each other
series of Preferred Stock, in preference and priority to any payment of
dividends on the Common Stock. No shares of Common Stock shall receive any
dividend at a rate which is greater than the rate at which dividends are
simultaneously paid in respect of the Preferred Stock.
2. Liquidation Rights.
(a) Liquidation Preference. In the event of any liquidation,
dissolution, or winding up of the Corporation, whether voluntary or not, the
holders of Series C Preferred shall be entitled to receive, before any amount
shall be paid to holders of Series A Preferred, Series B Preferred or Common
Stock, an amount equal to $5.00 per share for each share of Series C Preferred
then held by such holder plus all declared and unpaid dividends, if any. If,
upon the occurrence of such event, the assets and funds available to be
distributed among the holders of Series C Preferred shall be insufficient to
permit the payment to such holders of the full preferential amount, then the
entire assets and funds of the Corporation legally available for distribution
shall be distributed ratably among the holders of Series C Preferred in
proportion to the number of shares of Series C Preferred held by each. After
payment has been made to the holders of Series C Preferred of the full
preferential amounts to which they are entitled, the holders of Series B
Preferred shall be entitled to receive, before any amount shall be paid to
holders of Series A Preferred or Common Stock, an amount equal to $0.51 per
share for each share of Series B Preferred then held by such holder plus all
declared and unpaid dividends, if any. If, upon the occurrence of such event,
the assets and funds available to be distributed among the holders of Series B
Preferred shall be insufficient to permit the payment to such holders of the
full preferential amount, then the entire assets and funds of the Corporation
legally available for distribution shall be distributed ratably among the
holders of Series B Preferred in proportion to the number of shares of Series B
Preferred held by each. After payment has been made to the holders of Series B
Preferred of the full preferential amounts to which they are entitled, the
holders of Series A Preferred shall be entitled to receive an amount equal to
$0.30 per share for each share of Series A Preferred then held plus all declared
and unpaid dividends before any amount shall be paid to holders of Common Stock.
If the assets and funds available to be distributed among the holders of Series
A Preferred shall be insufficient to permit the payment to such holders of the
full preferential amount, then the entire assets and funds of the Corporation
legally available for distribution shall be distributed ratably among the
holders of Series A Preferred in proportion to the number of shares of Series A
Preferred held by each. After
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payment has been made to the holders of Preferred Stock of the full amounts to
which they shall be entitled as aforesaid, the remaining assets of the
Corporation available for distribution to shareholders shall be distributed
ratably among the holders of Preferred Stock and the holders of Common Stock
based on the number of shares of Common Stock held by each (assuming the
conversion into Common Stock of all Preferred Stock).
(b) Consolidation or Merger. A consolidation or merger of the
Corporation with or into any other corporation or corporations, or a sale of all
or substantially all of the assets of the Corporation, or a series of related
transactions in which more than 50% of the voting power of the Corporation is
disposed of, shall not be deemed to be a liquidation, dissolution or winding up
within the meaning of this Section 2.
(c) Consent to Repurchases. Each holder of shares of Preferred Stock
shall be deemed to have consented to any repurchases by the Corporation of
shares of Common Stock issued to or held by employees, directors or consultants
pursuant to agreements providing for such repurchase upon the termination of
such person's service to this Corporation.
3. Nonredeemable. The shares of Common Stock and the shares of Preferred
Stock are nonredeemable.
4. Voting Rights. Except as otherwise provided by law, the holders of
Preferred Stock and the holders of Common Stock shall be entitled to notice of
any shareholders' meeting and to vote upon any matter submitted to the
shareholders for a vote, including the election of directors, as follows: (i)
the holders of Preferred Stock shall have one vote for each full share of Common
Stock into which their respective shares of Preferred Stock are convertible on
the record date for the vote, and (ii) the holders of Common Stock shall have
one vote per share of Common Stock.
5. Conversion Rights.
(a) Right to Convert. Each share of Series A Preferred, Series B
Preferred or Series C Preferred shall be convertible, at any time upon surrender
of the certificate therefor, into fully-paid and non-assessable shares of Common
Stock at the rate of one share of Common Stock for each share of Series A
Preferred, Series B Preferred or Series C Preferred, subject to adjustment in
accordance with Paragraph 5(b). No adjustment shall be made with respect to any
dividends which may be accrued and unpaid at the date of surrender for
conversion. The option to convert shall be exercised by surrendering to the
Corporation, at the office of the corporation or of any transfer agent for the
Common Stock or the Preferred Stock, certificates representing the shares to be
converted duly endorsed in blank or accompanied by proper instruments of
transfer. The Corporation shall, as soon as practicable thereafter, issue and
deliver at such office to the holder of Preferred Stock certificates for the
number of full shares of Common Stock to which the holder is entitled. The
conversion shall be deemed to have been made as of the date of surrender of the
certificates for the Preferred Stock, and the person entitled to receive the
Common Stock therefor shall be treated for all purposes as the record holder of
such Common Stock upon such date.
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(b) Adjustments to Conversion Rate. The number of shares of Common
Stock into which the Series A, Series B and Series C Preferred may be converted
shall be subject to adjustments as follows:
(i) Subdivisions, Combinations, or Consolidations. If the
outstanding shares of Common Stock are subdivided, by stock split, stock
dividend combination, reclassification or otherwise, into a larger or smaller
number of shares, the number of shares of Common Stock into which the Series A,
Series B and Series C Preferred may be converted shall be increased or
decreased, concurrently with the effectiveness of such subdivision, combination,
or consolidation, in the same proportion as the increase or decrease in the
outstanding shares of Common Stock.
(ii) Merger; Reorganization. In case of any capital
reorganization, including any reclassification of the capital stock of the
Corporation or any merger of the Corporation with another corporation or the
sale or conveyance of all or substantially all of the assets of the Corporation
to another corporation, each share of Series A, Series B and Series C Preferred
shall thereafter be convertible into the number of shares of stock or other
securities or property to which a holder of the number of shares of Common Stock
deliverable upon conversion of such share of Series A, Series B and Series C
Preferred would have been entitled upon such reorganization.
(c) Certificate of Adjustment. Whenever the Amount of Common Stock or
other securities deliverable upon the conversion of Series A Preferred, Series B
Preferred and Series C Preferred shall be adjusted pursuant to the provisions
hereof, the Corporation shall forthwith file, at its principal executive office
and with any transfer agent for its Common Stock or Preferred Stock, a statement
signed by the President and Treasurer of the Corporation stating the adjusted
amount of its Common Stock or other securities deliverable per share of Series A
Preferred, Series B Preferred and Series C Preferred calculated to the nearest
one-hundredth and setting forth in reasonable detail the method of calculation
and the facts requiring such adjustment and upon which such calculation is
based. Each adjustment shall remain in effect until a subsequent adjustment is
required hereunder.
(d) Automatic Conversion. The shares of Series A Preferred, Series B
Preferred and Series C Preferred shall be automatically converted into Common
Stock immediately prior to the closing of an underwritten public offering
pursuant to an effective registration statement filed for the corporation with
the Securities and Exchange Commission which results in gross proceeds in excess
of $7,500,000.
(e) Reservation of Common. The Corporation shall at all times reserve
and keep available out of its authorized but unissued Common Stock the full
number of shares deliverable upon conversion of all of the then outstanding
Preferred Stock and shall take all such action and obtain all such permits and
orders as may be necessary to enable the Corporation lawfully to issue such
Common Stock upon the conversion of the Preferred Stock.
(f) No Fractional Shares. No fractions of shares of Common Stock
shall be issued upon the conversion of the Preferred Stock. In lieu of any
fractional shares, the
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corporation shall pay to the holder an amount of cash equal to the fair market
value of such fractional shares as determined by the Board of Directors.
6. No Preemptive Rights. No holder of Preferred Stock shall have any
preemptive right to purchase and/or subscribe for any additional shares of any
class of stock which may be issued at any time by the Corporation.
7. Residual Rights. All rights accruing to the outstanding shares of the
Corporation not expressly provided to the Preferred Stock herein shall be vested
in the Common Stock.
8. Status of Converted Stock. In case any shares of Preferred Stock shall
be converted pursuant to Section 5 hereof, the shares so converted shall resume
the status of authorized but unissued shares of Preferred Stock.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and
for further definition, limitation and regulation of the powers
of the Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. In addition to
the powers and authority expressly conferred upon them by statute
or by this Certificate of Incorporation or the Bylaws of the
Corporation, the directors are hereby empowered to exercise all
such powers and do all such acts and things as may be exercised
or done by the Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
C. On and after the closing date of the first sale of the
Corporation's Common Stock pursuant to a firmly underwritten
registered public offering which results in the automatic
conversion of the Corporation's Preferred Stock (the "IPO"), any
action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders. Prior to
such sale, unless otherwise provided by law, any action which may
otherwise be taken at any meeting of the stockholders may be
taken without a meeting and without prior notice, if a written
consent describing such actions is signed by the holders of
outstanding shares having not less than the minimum number of
votes which would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were
present and voted.
D. Special meetings of stockholders of the Corporation may be called
only (1) by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors
(whether or not there
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exist any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board for adoption)
or (2) by the holders of not less than ten percent (10%) of all
of the shares entitled to cast votes at the meeting.
SIXTH:
A. The number of directors shall initially be set at five (5) and,
thereafter, shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority
of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board for adoption).
Upon the closing of the IPO, the directors shall be divided into
three classes with the term of office of the first class (Class
I) to expire at the first annual meeting of the stockholders
following the IPO; the term of office of the second class (Class
II) to expire at the second annual meeting of stockholders held
following the IPO; the term of office of the third class (Class
III) to expire at the third annual meeting of stockholders; and
thereafter for each such term to expire at each third succeeding
annual meeting of stockholders after such election. Subject to
the rights of the holders of any series of Preferred Stock then
outstanding, a vacancy resulting from the removal of a director
by the stockholders as provided in Article SIXTH, Section C below
may be filled at a special meeting of the stockholders held for
that purpose. All directors shall hold office until the
expiration of the term for which elected, and until their
respective successors are elected, except in the case of the
death, resignation, or removal of any director.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting
from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death,
resignation or other cause (other than removal from office by a
vote of the stockholders) may be filled only by a majority vote
of the directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of office
of the class to which they have been elected expires, and until
their respective successors are elected, except in the case of
the death, resignation, or removal of any director. No decrease
in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
C. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, with or
without cause, but only by the affirmative vote of the holders of
at least a majority of the voting power of all of the then
outstanding shares of capital stock of the Corporation
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entitled to vote generally in the election of directors, voting
together as a single class. Vacancies in the Board of Directors
resulting from such removal may be filled by a majority of the
directors then in office, though less than a quorum, or by the
stockholders as provided in Article SIXTH, Section A above.
Directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of office
of the class to which they have been elected expires, and until
their respective successors are elected, except in the case of
the death, resignation, or removal of any director.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
repeal Bylaws of the Corporation. Any adoption, amendment or
repeal of Bylaws of the Corporation by the Board of Directors
shall require the approval of a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the
Board). The stockholders shall also have power to adopt, amend or
repeal the Bylaws of the Corporation. Any adoption, amendment or
repeal of Bylaws of the Corporation by the stockholders shall
require, in addition to any vote of the holders of any class or
series of stock of the Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders
of at least sixty-six and two-thirds percent (66-2/3%) of the
voting power of all of the then outstanding shares of the capital
stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
EIGHTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involved intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability
of a director, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this
Article EIGHTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
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NINTH: The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation in the
manner prescribed by the laws of the State of Delaware and all
rights conferred upon stockholders are granted subject to this
reservation; provided, however, that, notwithstanding any other
provision of this Certificate of Incorporation or any provision
of law which might otherwise permit a lesser vote or no vote, but
in addition to any vote of the holders of any class or series of
the stock of this Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders
of at least 66-2/3% of the voting power of all of the then
outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting
together as a single class, shall be required to amend or repeal
this Article NINTH, Article FIFTH, Article SIXTH, Article SEVENTH
or Article EIGHTH.
The Certificate of Incorporation of XXX Delaware, as amended herein,
shall continue to be the Certificate of Incorporation of XXX Delaware as the
surviving Corporation without change or amendment until further amended in
accordance with the provisions thereof and applicable laws. The Bylaws of XXX
Delaware, in effect on the Effective Date, shall continue to be the Bylaws of
XXX Delaware as the surviving Corporation without change or amendment until
further amended in accordance with the provisions thereof and applicable laws.
3. Directors and Officers. The directors and officers of XXX California
shall become the directors and officers of XXX Delaware upon the Effective Date
and any committee of the Board of Directors of XXX California shall become the
members of such committees for XXX Delaware.
4. Succession. On the Effective Date, XXX Delaware shall succeed to XXX
California in the manner of and as more fully set forth in Section 259 of the
General Corporation Law of the State of Delaware.
5. Further Assurances. From time to time, as and when required by XXX
Delaware or by its successors and assigns, there shall be executed and delivered
on behalf of XXX 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, perfect or confirm, of record or
otherwise, in XXX Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of XXX California, and otherwise to carry out the purposes of this
Merger Agreement and the officers and directors of XXX Delaware are fully
authorized in the name and on behalf of XXX California or otherwise to take any
and all such action and to execute and deliver any and all such deeds and other
instruments.
6. Stock of XXX California.
a. Common Stock. Upon the Effective Date, by virtue of the Merger
and without any action on the part of the holder thereof, each share of XXX
California Common
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Stock outstanding immediately prior thereto shall be changed and converted into
one fully paid and nonassessable share of XXX Delaware Common Stock.
b. Preferred Stock. Upon the Effective Date, by virtue of the
Merger and without any action on the part of the holder thereof, each share of
each series of XXX California Preferred Stock outstanding immediately prior
thereto shall be changed and converted into one fully paid and nonassessable
share of XXX Delaware Preferred Stock of an equivalent series.
7. Stock Certificates. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of XXX
California stock shall be deemed for all purposes to evidence ownership of and
to represent the shares of XXX Delaware stock into which the shares of XXX
California stock represented by such certificates have been converted as herein
provided. The registered owner on the books and records of XXX Delaware or its
transfer agent of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to XXX Delaware 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 XXX Delaware stock evidenced by such
outstanding certificate as above provided.
8. Options. Upon the Effective Date, each outstanding option or other
right to purchase shares of XXX California stock, including those options
granted under the 1993 Stock Option Plan and the 1997 Stock Option Plan
(collectively, the "Option Plans") of XXX California, shall be converted into
and become an option or right to purchase the identical number of shares of XXX
Delaware stock at a price per share equal to the exercise price of the option or
right to purchase XXX California stock, and upon the same terms and subject to
the same conditions as set forth in the Option Plans and other agreements
entered into by XXX California pertaining to such options, warrants, or rights.
A number of shares of XXX Delaware stock shall be reserved for purposes of such
options and rights equal to the number of shares of XXX California stock so
reserved as of the Effective Date. As of the Effective Date, XXX Delaware shall
assume all obligations of XXX California under agreements pertaining to such
options and rights, including the Option Plans, and the outstanding options or
other rights, or portions thereof, granted pursuant thereto.
9. Other Employee Benefit Plans. As of the Effective Date, XXX Delaware
hereby assumes all obligations of XXX California under any and all employee
benefit plans in effect as of said date or with respect to which employee rights
or accrued benefits are outstanding as of said date, including but not limited
to the 1997 Employee Stock Purchase Plan and the 1998 Employee Stock Purchase
Plan. A number of shares of XXX Delaware stock shall be reserved for purposes of
such plans equal to the number of shares of XXX California stock so reserved as
of the Effective Date. As of the Effective Date, XXX Delaware shall assume all
obligations of XXX California under agreements pertaining to such plans, and the
outstanding rights granted pursuant thereto.
10. Outstanding Common Stock of XXX Delaware. Forthwith upon the
Effective Date, the one thousand (1,000) shares of XXX Delaware Common Stock
presently issued and outstanding in the name of XXX California shall be canceled
and retired and resume the status of
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authorized and unissued shares of XXX Delaware Common Stock, and no shares of
XXX Delaware Common Stock or other securities of XXX Delaware shall be issued in
respect thereof.
11. Covenants of XXX Delaware. XXX Delaware covenants and agrees that it
will, on or before the Effective Date:
a. Qualify to do business as a foreign corporation in the State
of California, and in all other states in which XXX California is so qualified
and in which the failure so to qualify would have a material adverse impact on
the business or financial condition of XXX Delaware. In connection therewith,
XXX Delaware shall irrevocably appoint an agent for service of process as
required under the provisions of Section 2105 of the California Corporations
Code and under applicable provisions of state law in other states in which
qualification is required hereunder.
b. File any and all documents with the California Franchise Tax
Board necessary to the assumption by XXX Delaware of all of the franchise tax
liabilities of XXX California.
12. Amendment. At any time before or after approval and adoption by the
stockholders of XXX California, this Merger Agreement may be amended in any
manner as may be determined in the judgment of the respective Boards of
Directors of XXX Delaware and XXX California to be necessary, desirable or
expedient in order to clarify the intention of the parties hereto or to effect
or facilitate the purposes and intent of this Merger Agreement.
13. Abandonment. 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 XXX California or XXX Delaware or both, notwithstanding
approval of this Merger Agreement by the sole stockholder of XXX Delaware and
the stockholders of XXX California.
14. 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.
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IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by resolution of the Board of Directors of XXX California and XXX
Delaware, is hereby executed on behalf of each of said two corporations by their
respective officers thereunto duly authorized.
AMERICAN XTAL TECHNOLOGY DELAWARE
CORPORATION,
a Delaware corporation
By:
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Xxxxxx X. Xxxxx, President and Chief
Executive Officer
AMERICAN XTAL TECHNOLOGY,
a California corporation
By:
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Xxxxxx X. Xxxxx, President and Chief
Executive Officer
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CERTIFICATE OF SECRETARY
OF
AMERICAN XTAL TECHNOLOGY DELAWARE CORPORATION
(a Delaware corporation)
I, ____________, the Secretary of American Xtal Technology Delaware
Corporation, a Delaware corporation (the "Corporation"), hereby certify that the
Agreement and Plan of Merger to which this Certificate is attached was duly
signed on behalf of the Corporation by its President under the corporate seal of
the Corporation and was duly approved and adopted by a unanimous vote of the
outstanding stock entitled to vote thereon by written consent of the sole
stockholder of the Corporation dated ________________, 1998.
Executed effective on the ___ day of _________, 1998.
--------------------------------
(Name)
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CERTIFICATE OF APPROVAL OF
AGREEMENT AND PLAN OF MERGER OF
AMERICAN XTAL TECHNOLOGY.
(a California corporation)
Xxxxxx X. Xxxxx and __________ certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of American Xtal Technology, a California corporation (the
"Corporation").
2. This Certificate is attached to the Agreement and Plan of Merger
dated as of _______________, 1998, providing for the merger of the Corporation
with and into American Xtal Technology Delaware Corporation, a Delaware
corporation.
3. The Agreement and Plan of Merger in the form attached hereto (the
"Merger Agreement") was approved by the Board of Directors of the Corporation at
a meeting duly noticed and held on _____________, 1998.
4. The total number of outstanding shares of the Corporation entitled to
vote on the merger was __________ shares of Common Stock, 4,924,817 shares of
Series A Preferred Stock, 4,003,921 shares of Series B Preferred Stock and
1,200,000 shares of Series C Preferred Stock.
5. The principal terms of the Merger Agreement were approved by an
affirmative vote which exceeded the vote required, such vote being a majority of
the total number of outstanding shares of Common Stock and a majority of the
outstanding shares of the Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock, voting separately as a class.
Dated: ____________________, 1998.
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Xxxxxx X. Xxxxx, President
------------------------------------
_____________, Secretary
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The undersigned, Xxxxxx X. Xxxxx and ___________, President and
Secretary, respectively, of American Xtal Technology, a California corporation,
declare under penalty of perjury under the laws of the State of California that
the matters set forth in this Certificate are true and correct of their own
knowledge.
Executed at Fremont, California, on ______________, 1998.
------------------------------------
Xxxxxx X. Xxxxx, President
------------------------------------
_____________, Secretary
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