EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF ▇▇▇▇▇ DELAWARE CORPORATION
(A DELAWARE CORPORATION)
AND
▇▇▇▇▇ CORPORATION
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of June 19, 2001 (the
"Agreement") is between ▇▇▇▇▇ Delaware Corporation, a Delaware corporation
("▇▇▇▇▇ Delaware") and ▇▇▇▇▇ Corporation, a California corporation ("▇▇▇▇▇
California"). ▇▇▇▇▇ Delaware and ▇▇▇▇▇ California are sometimes referred to
herein as the "Constituent Corporations."
Recitals
▇. ▇▇▇▇▇ Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 105,000,000
shares, 100,000,000 of which are designated "Common Stock," par value $0.001
per share, and 5,000,000 of which are designated "Preferred Stock," par value
$0.001 per share. The Preferred Stock of ▇▇▇▇▇ Delaware is undesignated as to
series, rights, preferences, privileges or restrictions. As of the date hereof,
100,000 shares of Common Stock were issued and outstanding, all of which were
held by ▇▇▇▇▇ California, and no shares of Preferred Stock were issued and
outstanding.
▇. ▇▇▇▇▇ California is a corporation duly organized and existing under the
laws of the State of California and has an authorized capital of 105,000,000
shares, 100,000,000 of which are designated "Common Stock," par value $0.001
per share, and 5,000,000 of which are designated "Preferred Stock," par value
$0.001 per share. The Preferred Stock of ▇▇▇▇▇ California is undesignated as to
series, rights, preferences, privileges or restrictions. As of June 18, 2001,
52,123,196 shares of Common Stock and no shares of Preferred Stock were issued
and outstanding.
C. The Board of Directors of ▇▇▇▇▇ California has determined that, for the
purpose of effecting the reincorporation of ▇▇▇▇▇ California in the State of
Delaware, it is advisable and in the best interests of ▇▇▇▇▇ California and its
shareholders that ▇▇▇▇▇ California merge with and into ▇▇▇▇▇ Delaware upon the
terms and conditions herein provided.
D. The respective Boards of Directors of ▇▇▇▇▇ Delaware and ▇▇▇▇▇
California have approved this Agreement and have directed that this Agreement
be submitted to a vote of their respective sole stockholder and shareholders
and executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, ▇▇▇▇▇ Delaware and ▇▇▇▇▇ California hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
ARTICLE 1
MERGER
Section 1.01. Merger. In accordance with the provisions of this Agreement,
the Delaware General Corporation Law and the California Corporations Code,
▇▇▇▇▇ California shall be merged with and into ▇▇▇▇▇ Delaware (the "Merger"),
the separate existence of ▇▇▇▇▇ California shall cease and ▇▇▇▇▇ Delaware shall
survive the Merger and shall continue to be governed by the laws of the State
of Delaware. ▇▇▇▇▇ Delaware shall be, and is herein sometimes referred to as,
the "Surviving Corporation." The name of the Surviving Corporation shall be
▇▇▇▇▇ Corporation.
Section 1.02. Filing And Effectiveness. The Merger shall become effective
when the following actions shall have been completed:
(a) This Agreement and Merger shall have been adopted and approved by the
stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the
California Corporations Code;
(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; and
(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.
(d) Executed Articles of Merger or an executed counterpart of this
Agreement meeting the requirements of the California Corporations
Code 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."
Section 1.03. Effect Of The Merger. Upon the Effective Date of the Merger,
the separate existence of ▇▇▇▇▇ California shall cease and ▇▇▇▇▇
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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 ▇▇▇▇▇ California's Board of Directors, (iii) shall succeed,
without other transfer, to all of the assets, rights, powers and property of
▇▇▇▇▇ California in the manner more fully set forth in Section 259 of the
Delaware General Corporation Law, (iv) shall continue to be subject to all of
the debts, liabilities and obligations of ▇▇▇▇▇ 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
▇▇▇▇▇ California in the same manner as if ▇▇▇▇▇ Delaware had itself incurred
them, all as more fully provided under the applicable provisions of the
Delaware General Corporation Law and the California Corporations Code.
ARTICLE 2
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
Section 2.01. Certificate Of Incorporation. The Certificate of
Incorporation of ▇▇▇▇▇ 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, except that the name of the
Surviving Corporation shall be changed to "▇▇▇▇▇ Corporation".
Section 2.02. Bylaws. The Bylaws of ▇▇▇▇▇ 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.
Section 2.03. Directors And Officers. The directors and officers of ▇▇▇▇▇
California 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, or the Certificate of Incorporation of the Surviving Corporation or the
Bylaws of the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERSION OF STOCK
Section 3.01. ▇▇▇▇▇ California Common Stock. Upon the Effective Date of
the Merger, each share of ▇▇▇▇▇ California Common Stock issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such shares or any other person,
be converted into and exchanged for one (1) fully paid and nonassessable
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share of Common Stock, par value $0.001 per share, of the Surviving
Corporation.
Section 3.02. ▇▇▇▇▇ California Options, Stock Purchase Rights And
Convertible Securities.
(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume and continue the stock option plans and all other
employee benefit plans of ▇▇▇▇▇ California. Each outstanding and
unexercised option or other right to purchase, or a security
convertible into, ▇▇▇▇▇ California Common Stock shall become an
option or right to purchase, or a security convertible into, the
Surviving Corporation's Common Stock on the basis of one share of the
Surviving Corporation's Common Stock for each share of ▇▇▇▇▇
California Common Stock issuable pursuant to any such option, stock
purchase right or convertible security, on the same terms and
conditions and at an exercise price per share equal to the exercise
price applicable to any such ▇▇▇▇▇ California option, stock purchase
right or convertible security at the Effective Date of the Merger.
There are no options, purchase rights for or securities convertible
into Preferred Stock of ▇▇▇▇▇ California.
(b) A number of shares of the Surviving Corporation's Common Stock shall
be reserved for issuance upon the exercise of options, stock purchase
rights and convertible securities equal to the number of shares of
▇▇▇▇▇ California Common Stock so reserved immediately prior to the
Effective Date of the Merger.
Section 3.03. ▇▇▇▇▇ Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, par value $0.001 per share, of ▇▇▇▇▇
Delaware issued and outstanding immediately prior thereto shall, by virtue of
the Merger and without any action by ▇▇▇▇▇ Delaware, the holder of such shares,
or any other person, be canceled and returned to the status of authorized but
unissued shares.
Section 3.04. Exchange Of Certificates. After the Effective Date of the
Merger, each holder of an outstanding certificate representing shares of ▇▇▇▇▇
California Common Stock may, at such stockholder's option, surrender the same
for cancellation to American Stock Transfer & Trust Company as exchange agent
(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. Unless and until so surrendered, each
outstanding certificate theretofore representing shares of ▇▇▇▇▇ 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 ▇▇▇▇▇
California Common Stock were converted in the Merger.
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The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any shares of stock represented by 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 ▇▇▇▇▇ California so
converted and given in exchange therefor, 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 ▇▇▇▇▇ 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 ▇▇▇▇▇
Delaware or 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 ▇▇▇▇▇
Delaware that such tax has been paid or is not payable.
ARTICLE 4
GENERAL
Section 4.01. Covenants Of ▇▇▇▇▇ Delaware. ▇▇▇▇▇ Delaware covenants and
agrees that it will, on or before the Effective Date of the Merger:
(a) qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent
for service of process as required under the provisions of Section
2105 of the California General Corporation Law;
(b) file any and all documents with the California Franchise Tax Board
necessary for the assumption by ▇▇▇▇▇ Delaware of all of the
franchise tax liabilities of ▇▇▇▇▇ California; and
(c) take such other actions as may be required by the California General
Corporation Law.
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Section 4.02. Further Assurances. From time to time, as and when required
by ▇▇▇▇▇ Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of ▇▇▇▇▇ California such deeds and other instruments, and
there shall be taken or caused to be taken by ▇▇▇▇▇ Delaware and ▇▇▇▇▇
California 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 ▇▇▇▇▇
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of ▇▇▇▇▇
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of ▇▇▇▇▇ Delaware are fully authorized in the name and
on behalf of ▇▇▇▇▇ California or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
Section 4.03. 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 ▇▇▇▇▇ California or
of ▇▇▇▇▇ Delaware, or of both, notwithstanding the approval of this Agreement
by the shareholders of ▇▇▇▇▇ California or by the sole stockholder of ▇▇▇▇▇
Delaware, or by both.
Section 4.04. Amendment. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement (for certificate in lieu thereof) with the Secretaries of State of
the States of Delaware and California, provided that an amendment made
subsequent to the adoption of this Agreement by the stockholders of either
Constituent Corporation shall not: (a) 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; (b) alter or change any term of the Certificate
of Incorporation of the Surviving Corporation to be effected by the Merger; or
(c) 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.
Section 4.05. Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County of New Castle and The Corporation Trust Company is the
registered agent of the Surviving Corporation at such address.
Section 4.06. Agreement. Executed copies of this Agreement will be on file
at the principal place of business of the Surviving Corporation at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and copies thereof will be
furnished to any stockholder of either Constituent Corporation, upon request
and without cost.
Section 4.07. Governing Law. This Agreement shall in all respects be
construed, interpreted and enforced in accordance with and governed by the laws
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of the State of Delaware and, so far as applicable, the merger provisions of
the California Corporations Code.
Section 4.08. 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 Board of Directors of ▇▇▇▇▇ Corporation, a Delaware
corporation, and ▇▇▇▇▇ Corporation, a California corporation, is hereby
executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
▇▇▇▇▇ Delaware Corporation
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇
Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Chief Financial Officer
▇▇▇▇▇ Corporation
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇
Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Chief Financial Officer
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