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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
APPLIED DIGITAL ACCESS, INC.
(a Delaware corporation)
AND
APPLIED DIGITAL ACCESS, INC.
(a California corporation)
THIS AGREEMENT AND PLAN OF MERGER dated as of December 23, 1997 (this
"Agreement") is between Applied Digital Access, Inc., a Delaware corporation
("ADA Delaware"), and Applied Digital Access, Inc., a California corporation
("ADA California"). ADA Delaware and ADA California are sometimes referred to
herein as the "Constituent Corporations."
RECITALS
A. ADA Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has a total authorized capital stock of
37,500,000 shares. The number of shares of Preferred Stock authorized to be
issued is 7,500,000, par value $.001. No shares of Preferred Stock were
outstanding as of the date hereof and prior to giving effect to the transactions
contemplated hereby. The number of shares of Common Stock authorized to be
issued is 30,000,000, par value $.001. As of the date hereof, and before giving
effect to the transactions contemplated hereby, 1,000 shares of Common Stock
were issued and outstanding, all of which were held by ADA California.
B. ADA California is a corporation duly organized and existing under the
laws of the State of California and has an authorized capital stock of
37,500,000 shares. The number of shares of Preferred Stock authorized to be
issued is 7,500,000, no par value, none of which are currently outstanding. The
number of shares of Common Stock authorized to be issued is 30,000,000, no par
value.
C. The Board of Directors of ADA California has determined that, for the
purpose of effecting the reincorporation of ADA California in the State of
Delaware, it is advisable and in the best interests of ADA California that ADA
California merge with and into ADA Delaware upon the terms and conditions herein
provided.
D. The respective Boards of Directors of ADA Delaware and ADA California
have approved this Agreement and have directed that this Agreement be submitted
to a vote of their respective stockholders and executed by the undersigned
officers.
E. ADA Delaware is a wholly-owned subsidiary of ADA California.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, ADA Delaware and ADA California hereby agree, subject to the terms
and conditions hereinafter set forth, as follows:
I. MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the General Corporation Law of the State of
California, ADA California shall be merged with and into ADA Delaware (the
"Merger"), the separate existence of ADA California shall cease and ADA Delaware
shall be, and is herein sometimes referred to as, the "Surviving Corporation,"
and the name of the Surviving Corporation shall be Applied Digital Access, Inc.
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1.2 Filing and Effectiveness. The Merger shall not become effective until
the following actions shall be completed:
(a) This Agreement and the Merger shall have been adopted and approved
by the stockholders of ADA California and the sole stockholder of ADA
Delaware in accordance with the requirements of the Delaware General
Corporation Law and the General Corporation Law of the State of California;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Delaware General Corporation
Law shall have been filed with the Secretary of State of the State of
Delaware; and
(d) An executed counterpart of this Agreement, a Certificate of
Ownership or any other document filed with the Secretary of State of the
State of Delaware pursuant to section (c) above, shall have been filed with
the Secretary of State of the State of California.
The date and time when the Merger shall become effective as aforesaid, is
herein called the "Effective Date of the Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of ADA California shall cease and ADA Delaware, as the
Surviving Corporation (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and ADA
California's Board of Directors, (iii) shall succeed, without other transfer, to
all of the assets, rights, powers and property of ADA California in the manner
more fully set forth in Section 259 of the General Corporation Law of the State
of Delaware, (iv) shall continue to be subject to all of the debts, liabilities
and obligations of ADA Delaware as constituted immediately prior to the
Effective Date of the Merger, and (v) shall succeed, without other transfer, to
all of the debts, liabilities and obligations of ADA California in the same
manner as if ADA Delaware had itself incurred them, all as more fully provided
under the applicable provisions of the General Corporation Law of the State of
Delaware and the General Corporation Law of the State of California.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of ADA
Delaware as in effect immediately prior to the Effective Date 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.
2.2 Bylaws. The Bylaws of ADA Delaware as in effect immediately prior to
the Effective Date 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.
2.3 Directors and Officers. The directors and officers of ADA Delaware
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 ADA California Common Shares. Upon the Effective Date of the Merger,
each share of ADA California Common Stock, no par value, 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 (1) fully paid and nonassessable share
of Common Stock, par value $.001 per share, of the Surviving Corporation. No
fractional share interests of the Surviving Corporation Common Stock shall be
issued but shall, instead, be rounded up to the nearest whole number.
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3.2 ADA California Options and Stock Purchase Rights. Upon the Effective
Date of the Merger, the Surviving Corporation shall assume and continue the
stock option plans (including the 1994 Employee Stock Purchase Plan and the 1994
Stock Option/Stock Issuance Plan) and all other employee benefit plans of ADA
California. Each outstanding and unexercised option, or other right to purchase
ADA California Common Stock shall become an option, or right to purchase the
Surviving Corporation's Common Stock on the basis of one (1) share of the
Surviving Corporation's Common Stock for each share of ADA California Common
Stock issuable pursuant to any such option, or stock purchase right on the same
terms and conditions and at an exercise price per share equal to the exercise
price per share applicable to any such ADA California option or stock purchase
right at the Effective Date of the Merger. There are no options or purchase
rights for Preferred Stock of ADA California.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options and stock purchase rights
equal to the number of shares of ADA California Common Stock so reserved
immediately prior to the Effective Date of the Merger.
3.3 ADA Delaware Common Stock. Upon the Effective Date of the Merger, each
share of Common Stock, par value $.001 per share, of ADA Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by ADA Delaware, the holder of such shares or any other person, be
cancelled and returned to the status of authorized but unissued shares.
3.4 Exchange of Certificates. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of ADA California
Common Stock may be asked to surrender the same for cancellation to an exchange
agent, whose name will be delivered to such holders prior to any requested
exchange (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 herein provided. Until so surrendered, each
outstanding certificate theretofore representing shares of ADA California Common
Stock shall be deemed for all purposes to represent the number of shares of the
Surviving Corporation's Common Stock into which such shares of ADA California
Common 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 Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common 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 ADA California so
converted and given in exchange therefore, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws, or other such additional legends as agreed upon by the holder and the
Surviving Corporation.
If any certificate for shares of ADA Delaware 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 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 ADA Delaware that
such tax has been paid or is not payable.
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IV. GENERAL
4.1 Covenants of ADA Delaware. ADA Delaware covenants and agrees that it
will, on or before the Effective Date of the Merger:
4.1.1 Qualify to do business as a foreign corporation in the State of
California.
4.1.2 File any and all documents with the California Franchise Tax
Board necessary for the assumption by ADA Delaware of all of the franchise tax
liabilities of ADA California.
4.1.3 Take such other actions as may be required by the General
Corporation Law of the State of California.
4.2 Further Assurances. From time to time, as and when required by ADA
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of ADA 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 ADA Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of ADA California and otherwise to carry out the purposes of this
Agreement, and the officers and directors of ADA Delaware are fully authorized
in the name and on behalf of ADA California or otherwise to take any and all
such action and to execute and deliver any and all such deeds and other
instruments.
4.3 Abandonment. At any time before the Effective Date 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 ADA California or of ADA
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of ADA California.
4.4 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 stockholder or shareholders of either Constituent Corporation
shall not: (1) 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, (2) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger or (3) 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 or series of capital stock of
any Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving Corporation
in the State of Delaware is 00 Xxx Xxxxxxx Xxxx, Xxxx xx Xxxxx, Xxxxxx of Kent
and the registered agent of the Surviving Corporation at such address is
CorpAmerica, Inc.
4.6 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 0000 Xxxxxxxx Xxxx,
Xxx Xxxxx, XX 00000, and copies thereof will be furnished to any stockholder or
shareholder of either Constituent Corporation, upon request and without cost.
4.7 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
General Corporation Law of the State of California.
4.8 Counterparts. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Boards of Directors of Applied Digital Access, Inc., a
Delaware corporation, and Applied Digital Access, Inc., a California
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
APPLIED DIGITAL ACCESS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President and Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Secretary
APPLIED DIGITAL ACCESS, INC.,
a California corporation
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President and Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Secretary
[COUNTERPART SIGNATURE PAGE
TO AGREEMENT AND PLAN OF MERGER]
