Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, is made and entered into as of
this 28 day of December, 1999, by and between Nogatech, Inc., a California
corporation ("Nogatech California" or the "Disappearing Corporation") and
Nogatech, Inc., a Delaware corporation ("Nogatech Delaware" or the "Surviving
Corporation" and, together with Nogatech California, the "Constituent
Corporations").
R E C I T A L S
A. Nogatech California is a corporation organized and
existing under the laws of California with its principal place of business at
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx.
B. Nogatech Delaware is a corporation organized and
existing under the laws of Delaware with its principal place of business at
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, and was formed for the
purpose of reincorporating Nogatech California in the State of Delaware.
C. The board of directors of the Constituent Corporations
deem it desirable and in the best interest of such Constituent Corporations
and their shareholders that Nogatech California be merged with and into
Nogatech Delaware pursuant to the provisions of the California Corporations
Code and the Delaware General Corporation Law in order that the transaction
qualify as a "reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
In consideration of the mutual covenants, and subject to
the terms and conditions set forth in this Agreement, the Constituent
Corporations agree as follows:
A G R E E M E N T
1. THE MERGER. Upon the terms and subject to the conditions
hereof, Nogatech California shall merge with and into Nogatech Delaware, in
accordance with the relevant provisions of the California Corporations Code
and the Delaware General Corporation Law and the parties hereto shall take
any other actions required by law to make the merger effective.
Following the merger, Nogatech Delaware, with all its
purposes, objects, rights, privileges, powers and franchises, shall continue,
and Nogatech California shall cease to exist.
2. EFFECTIVE DATE OF THE MERGER. The effective date of the
merger shall be the date upon which the requisite documents are filed with
the Secretary of State of California and the Secretary of State of Delaware
(the "Effective Date").
3. TERMS AND CONDITIONS. On the Effective Date, the
separate existence of Disappearing Corporation shall cease, and the Surviving
Corporation shall succeed to all the rights,
privileges, immunities, and franchises, and all the property, real, personal,
and mixed, of the Disappearing Corporation without the necessity for any
separate transfer. The Surviving Corporation shall, after the Effective Date,
be responsible and liable for all liabilities and obligations of the
Disappearing Corporation, and neither the rights of creditors nor any liens
on the property of the Disappearing Corporation shall be impaired by the
merger.
4. CONVERSION. On the Effective Date, by virtue of the
merger and without any further action on the part of the Disappearing
Corporation or the Surviving Corporation or the holder of any of the
following securities, (i) each issued and outstanding share of the common
stock of the Disappearing Corporation shall be converted into and become one
fully paid and nonassessable share of common stock, $0.001 par value, of the
Surviving Corporation; and (ii) each issued and outstanding share of the
Series A Convertible Preferred Stock of the Disappearing Corporation shall be
converted into and become one fully paid and nonassessable share of Series A
Convertible Preferred Stock, $0.001 par value, of the Surviving Corporation.
After the Effective Date of the merger, each holder of certificates for
shares of common stock and Series A Convertible Preferred Stock in the
Disappearing Corporation shall surrender them to the Surviving Corporation or
its appointed agent, in the manner as the Surviving Corporation shall legally
require. On receipt of the share certificates, the Surviving Corporation
shall issue and exchange therefor certificates for shares of common stock and
Series A Convertible Preferred Stock, as applicable, in the Surviving
Corporation, representing the number of shares of that stock to which the
holder is entitled as provided above. The share of Common Stock of the
Surviving Corporation outstanding immediately prior to the effective time of
the merger shall be cancelled on the Effective Date.
5. CERTIFICATE OF INCORPORATION. The certificate of
incorporation of the Surviving Corporation, as in effect immediately prior to
the merger, shall continue to be its certificate of incorporation following
the Effective Date.
6. BYLAWS. The bylaws of the Surviving Corporation as in
effect immediately prior to the merger shall continue to be its bylaws following
the Effective Date.
7. DIRECTORS AND OFFICERS. The directors and officers of
the Surviving Corporation on the Effective Date shall continue as the
directors and officers of the Surviving Corporation for the full and
unexpired terms of their offices and until their successors have been elected
or appointed and qualified.
8. TAX CONSEQUENCES. It is intended that the merger shall
constitute a reorganization within the meaning of Section 368(a) of the Code,
and that this Agreement shall constitute a "plan of reorganization" for the
purposes of Section 368 of the Code.
9. TERMINATION. This Agreement may be terminated at any
time prior to the Effective Date, whether before or after approval of the
matters presented in connection with the merger by the stockholders of
Nogatech California or Nogatech Delaware, or by action of the Board of
Directors of Nogatech California. In the event of the termination and
abandonment of this Agreement pursuant to this Section 9, this Agreement
shall forthwith become void and have no
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effect, without any liability on the part of any party hereto or its
affiliates, directors, officers or stockholders.
10. AMENDMENT. This Agreement may be amended by the parties
hereto, by action taken or authorized by their respective boards of
directors, at any time before or after approval of the matters presented in
connection with the merger by the stockholders of Nogatech California or
Nogatech Delaware, but, after any such approval, no amendment shall be made
which by law requires further approval by such stockholders without such
further approval. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective officers thereunto duly authorized
as of the date first written above.
NOGATECH, INC., a NOGATECH, INC., a
California Corporation Delaware Corporation
By: /s/ Xxxx Xxxxxx By: /s/ Yaron Garmazi
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(Signature) (Signature)
Xxxx Xxxxxx, Chief Executive Officer Yaron Garmazi, Secretary
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(print name and title) (print name and title)
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