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EXIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF COMPUTER MOTION, INC.,
A DELAWARE CORPORATION
AND
COMPUTER MOTION, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of _________, 1997 (this
"Agreement"), is between COMPUTER MOTION, INC., a Delaware corporation ("CMI
Delaware"), and COMPUTER MOTION, INC., a California corporation ("CMI
California"), which corporations are sometimes referred to herein as the
"Constituent Corporations".
R E C I T A L S
A. CMI Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 75,000,000
shares, 25,000,000 of which are designated "Common Stock", $.001 par value, and
50,000,000 of which are designated "Preferred Stock", $.001 par value. As of May
31, 1997, 100 shares of Common Stock were issued and outstanding, all of which
were held by CMI California. No shares of Preferred Stock were outstanding.
B. CMI California is a corporation duly organized and existing under the
laws of the State of California and has an authorized capital of 75,000,000
shares, 25,000,000 of which are designated "Common Stock", no par value and
50,000,000 of which are designated "Preferred Stock", no par value. As of May
31, 1997, 3,364,082 shares of Common Stock were outstanding and 4,335,555 shares
of Preferred Stock were outstanding.
C. The Board of Directors of CMI California has determined that, for the
purpose of effecting the reincorporation of CMI California in the State of
Delaware, it is advisable and in the best interests of CMI California and its
shareholders that CMI California merge with and into CMI Delaware upon the terms
and conditions herein provided.
D. The respective Boards of Directors of CMI Delaware and CMI 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.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, CMI Delaware and CMI 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 California General Corporation Law, CMI
California shall be merged with and into CMI Delaware (the "Merger"), the
separate existence of CMI California shall cease and CMI Delaware shall be, and
is herein sometimes referred to as, the "Surviving Corporation", and the name of
the Surviving Corporation shall be "Computer Motion, Inc."
1.2 Filing and Effectiveness. The Merger shall become effective when the
following actions have been completed:
(a) This Agreement has been adopted and approved by the stockholders
of each
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Constituent Corporation in accordance with the requirements of the
Delaware General Corporation Law and the California General Corporation
Law;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement 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 has been filed with the Secretary of State of the State
of Delaware.
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 and corporate organization of CMI California shall cease and
CMI Delaware, as the Surviving Corporation, shall continue its corporate
existence under the laws of the State of Delaware.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
CMI Delaware as in effect immediately before 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 or repealed in accordance with the
provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of CMI Delaware as in effect immediately before
the Effective Date of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended or repealed in accordance
with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of CMI California
immediately before the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until the expiration of their current
terms and until their successors have been duly elected and qualified, or until
their prior resignation, removal or death, subject to the Certificate of
Incorporation and the Bylaws of the Surviving Corporation.
III.
MANNER OF CONVERSION OF STOCK
3.1 CMI California Shares. Upon the Effective Date of the Merger, each
share of CMI California Common Stock, no par value, issued and outstanding
immediately before the Effective Date of the Merger shall by virtue of the
Merger and without any action by the Constituent Corporations, by the holder of
such shares or by any other person be converted into and exchanged for .51867
fully paid and nonassessable share of Common Stock, $.001 par value, of the
Surviving Corporation. Upon the Effective Date of the Merger, each share of
Series A Preferred Stock, no par value, Series B Preferred Stock, no par value,
Series C Preferred Stock, no par value, Series D Preferred Stock, no par value,
and Series E Preferred Stock, no par value, of CMI California issued and
outstanding immediately before the Effective Date of the Merger shall by virtue
of the Merger and without any action by the Constituent Corporations, by the
holder of such shares or by any other person be converted into and exchanged for
.51867 fully paid and nonassessable share of Series A Preferred Stock, $.001
par value, Series B Preferred Stock, $.001 par value, Series C Preferred Stock,
$.001 par value, Series D Preferred Stock, $.001 par value, and Series E
Preferred Stock, $.001 par value, respectively, of the Surviving Corporation.
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3.2 CMI California Options, Stock Purchase Rights and Convertible
Securities. Upon the Effective Date of its Merger, the Surviving Corporation
shall assume and continue CMI California's 1993 Tandem Stock Option Plan, its
1997 Stock Incentive Plan and warrant, all other employee benefit plans of CMI
California. Each outstanding and unexercised option, other right to purchase or
security convertible into CMI California Common Stock shall become an option,
right to purchase or a security convertible into the Surviving Corporation's
Common Stock on the basis of .51867 share of the Surviving Corporation's Common
Stock for each share of CMI California Common Stock issuable pursuant to any
such option, stock purchase right or convertible security, under the same terms
and conditions and at an exercise price per share equal to the exercise price
per share applicable to any such CMI California stock option, stock purchase
right or other convertible security at the Effective Date of the Merger.
A number of shares of the Surviving Corporation's Common Stock and
Preferred Stock shall be reserved for issuance upon the exercise of stock
options, stock purchase rights and convertible securities equal to the number of
shares of CMI California Common Stock and Preferred Stock so reserved
immediately before the Effective Date of the Merger.
3.3 Fractional Shares. No fractional shares shall be issued upon such
conversion, and the number of shares of Common Stock to be issued shall be
rounded down to the nearest whole share and the amount representing less than
one share at the above ratio shall be paid in cash, at a rate equal to the fair
market value of such shares, as determined in good faith by the Board of
Directors of CMI Delaware.
3.4 CMI Delaware Common Stock. Upon the Effective Date of the Merger, each
share of Common Stock, $.001 par value, of CMI Delaware issued and outstanding
immediately before the Effective Date of the Merger shall, by virtue of the
Merger and without any action by CMI Delaware, by the holder of such shares or
by any other person be canceled and returned to the status of authorized but
unissued shares.
3.5 Exchange of Certificates. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of CMI California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to the Surviving Corporation or to its transfer 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 or Preferred Stock into which the
surrendered shares were converted as herein provided. Until so surrendered, each
outstanding certificate theretofore representing shares of CMI California Common
Stock or Preferred Stock shall be deemed for all purposes to represent the
number of shares of the Surviving Corporation's Common Stock or Preferred Stock,
as adjusted pursuant to Section 3.1 above, into which such shares of CMI
California Common Stock or Preferred 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 has been surrendered for transfer or conversion or otherwise
accounted for to the Surviving Corporation or the Exchange Agent, have and be
entitled to exercise voting and other rights with respect to and to receive
dividends and other distributions upon the shares of Common Stock or Preferred
Stock of the Surviving Corporation represented by such outstanding certificate
as provided above.
Each certificate representing Common Stock and Preferred Stock of the
Surviving Corporation so issued in the Merger shall bear the same legends, if
any, with respect to restrictions on transferability as the certificates of CMI
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.
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If any certificate for shares of CMI 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 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 CMI Delaware that such tax has been paid or is not payable.
IV.
TRANSFER OF ASSETS AND LIABILITIES
4.1 Transfer of Assets and Liabilities. On the Effective Date, (i) 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 the disabilities, duties
and restrictions of or upon each of the Constituent Corporations; (ii) all
rights, privileges, powers and franchises of each of the Constituent
Corporations, all property, real, personal and mixed, of each of the Constituent
Corporations, all debts due to each of the Constituent Corporations on whatever
account and all things in action or belonging to each of the Constituent
Corporations shall be transferred to and vested in the Surviving Corporation;
(iii) all property, rights, privileges, powers and franchises, as well as all
other interests, shall be as effectively the property of the Surviving
Corporation as they were of the Constituent Corporations before the Effective
Date; and (iv) the title to any real estate vested by deed or otherwise in
either of the Constituent Corporations shall not revert to either of the
Constituent Corporations or be in any way impaired by reason of the Merger.
Notwithstanding the foregoing, (i) the liabilities of the Constituent
Corporations and of their stockholders, directors and officers shall not be
affected by the Merger; (ii) all rights of creditors and all liens upon any
property of either of the Constituent Corporations shall be preserved unimpaired
notwithstanding the Merger; and (iii) 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; provided, however, that the
claims and rights of the creditors of either or both of the Constituent
Corporations may be modified with the consent of such creditors; and, provided
further, that all debts, liabilities and duties of or upon each of the
Constituent Corporations shall attach to the Surviving Corporation and
accordingly may be enforced against it to the same extent as if such debts,
liabilities and duties had been incurred or contracted by it.
4.2 Further Assurances. From time to time, as and when required by CMI
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of CMI 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 CMI Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of CMI California and otherwise to carry out the purposes of this
Agreement, and the officers and directors of CMI Delaware are fully authorized
in the name and on behalf of CMI California or otherwise to take all such
actions and to execute and deliver all such deeds and other instruments.
V.
GENERAL
5.1 Covenants of CMI Delaware. CMI 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.
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(b) File all documents with the California Franchise Tax Board
necessary for the assumption by CMI Delaware of all of the franchise tax
liabilities of CMI California.
(c) Take such other actions as may be required by the California
General Corporation Law.
5.2 Deferral. Consummation of the merger may be deferred by the Board of
Directors of CMI California for a reasonable period of time if the Board of
Directors determines that deferral would be in the best interests of CMI
California and its shareholders.
5.3 Amendment. The parties hereto, by mutual consent of their respective
Boards of Directors, may amend, modify or supplement this Agreement in such
manner as may be agreed upon by them in writing at any time before or after
adoption and approval of this Agreement by the stockholders of CMI Delaware and
CMI California, but not later than the Effective Date; provided, however, that
no such amendment, modification or supplement not adopted and approved by the
stockholders of CMI Delaware and CMI California shall affect the rights of such
stockholders or change any of the principal terms of this Agreement.
5.4 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 CMI California or of CMI
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of CMI California or by the stockholders of CMI Delaware, or by
both. In the event of abandonment of this Agreement, as above provided, this
Agreement shall become wholly void and of no effect, and no liability on the
part of either Constituent Corporation or its Board of Directors or its
stockholders shall arise by virtue of such termination except as provided in
Section 5.5 hereof.
5.5 Expenses. If the Merger becomes effective, the Surviving Corporation
shall assume and pay all expenses in connection therewith not theretofore paid
by the respective parties. If for any reason the Merger shall not become
effective, CMI California shall pay all expenses incurred in connection with all
the proceedings taken in respect of this Agreement or relating thereto.
5.6 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at ▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation
System, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The
▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation System, Inc. is the registered agent of the
Surviving Corporation at such address.
5.7 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at ▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ , and, upon request and without cost, copies thereof will be
furnished to any stockholder of either Constituent Corporation.
5.8 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
California General Corporation Law.
5.9 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.
IN WITNESS WHEREOF, this Agreement having first been approved by
resolutions of the Boards of Directors of CMI Delaware and CMI California is
hereby executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
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Computer Motion, Inc.,
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer and President
Computer Motion, Inc.,
a California corporation
By:
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▇▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer and President
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