EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF YES! ENTERTAINMENT CORPORATION,
A DELAWARE CORPORATION,
AND
YES! ENTERTAINMENT CORPORATION,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of September 24, 1996 (the
"Agreement") is between YES! Entertainment Corporation, a Delaware corporation
("YES! Delaware"), and YES! Entertainment Corporation, a California corporation
("YES! California"). YES! Delaware and YES! California are sometimes referred
to herein as the "Constituent Corporations."
RECITALS
A. YES! Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 50,000,000
shares, $0.001 par value, of which 48,000,000 shares are designated "Common
Stock," and 2,000,000 shares are designated "Preferred Stock." The Preferred
Stock of YES! Delaware is undesignated as to series, rights, preferences,
privileges or restrictions. As of September 24, 1996, 100 shares of Common
Stock were issued and outstanding, all of which are held by YES! California, and
no shares of Preferred Stock were issued and outstanding.
B. YES! California is a corporation duly organized and existing under the
laws of the State of California and has an authorized capital of 202,000,000
shares, no par value, of which 200,000,000 are designated "Common Stock," and
2,000,000 shares are designated "Preferred Stock." The Preferred Stock of YES!
California is undesignated as to series, rights, preferences, privileges or
restrictions. As of September 24, 1996, 14,004,159 shares of Common Stock
were issued and outstanding, and no shares of Preferred Stock were issued and
outstanding.
C. The Board of Directors of YES! California has determined that, for the
purpose of effecting the reincorporation of YES! California in the State of
Delaware, it is advisable and in the best interests of YES! California and its
shareholders that YES! California merge with and into YES! Delaware upon the
terms and conditions herein provided.
D. The respective Boards of Directors of YES! Delaware and YES! California
have approved this Agreement and have directed that this Agreement be submitted
to a vote of their respective shareholders and executed by the undersigned
officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, YES! Delaware and YES! 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,
YES! California shall be merged with and into YES! Delaware (the "Merger"), the
separate existence of YES! California shall cease and YES! Delaware shall
survive the Merger and shall continue to be governed by the laws of the State of
Delaware, and YES! Delaware shall be, and is herein sometimes referred to as,
the "Surviving Corporation," and the name of the Surviving Corporation shall be
YES! Entertainment Corporation.
1.2 Filing and Effectiveness. The Merger shall become effective when the
following actions shall have been completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the shareholders of each 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 shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed, acknowledged
and certified 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 Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the California General
Corporation Law 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 YES! California shall cease and YES! 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
YES! California's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of YES! California
in the manner as more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations 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 YES! California in the same manner as if
YES! Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the California
General Corporation Law.
II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of YES!
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 YES! 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 YES! California
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their respective 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.
III
MANNER OF CONVERSION OF STOCK
3.1 YES! California Common Stock. Upon the Effective Date of the Merger,
each share of YES! 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 shares or any other person,
be changed and converted into and exchanged for one fully paid and nonassessable
share of Common Stock, $.001 par value, of the Surviving Corporation.
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3.2 YES! 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 without limitation the 1992 Stock Option Plan, the
1995 Stock Option Plan and the 1995 Directors Stock Option Plan) and all other
employee benefit plans (including without limitation the 401(k) Matching Plan,
the Profit Sharing Plan and the Executive Profit Sharing Plan) of YES!
California. Each outstanding and unexercised option or other right to purchase
or security convertible into YES! 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 YES! 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 YES! 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 YES!
California.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, stock purchase rights or
convertible securities equal to the number of shares of YES! California Common
Stock so reserved immediately prior to the Effective Date of the Merger.
3.3 YES! Delaware Common Stock. Upon the Effective Date of the Merger,
each share of Common Stock, $.001 par value, of YES! Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by YES! 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 YES! California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to Continental 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 such holders'
shares of YES! California Common Stock were converted as herein provided. Unless
and until so surrendered, each outstanding certificate theretofore representing
shares of YES! California Common Stock shall be deemed for all purposes to
represent the number of whole shares of the Surviving Corporation's Common Stock
into which such shares of YES! 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 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 YES! 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.
If any certificate for shares of YES! 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 YES! Delaware or the Exchange Agent any transfer or other
taxes payable by reason of the 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 YES! Delaware that such tax has been paid or is not
payable.
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IV
GENERAL
4.1 Covenants of YES! Delaware. YES! 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 YES! Delaware of all of the franchise
tax liabilities of YES! California; and
(c) Take such other actions as may be required by the California
General Corporation Law.
4.2 Further Assurances. From time to time, as and when required by YES!
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of YES! California such deeds and other instruments, and there shall
be taken or caused to be taken by YES! Delaware and YES! 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 YES! Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of YES! California and otherwise to
carry out the purposes of this Agreement, and the officers and directors of YES!
Delaware are fully authorized in the name and on behalf of YES! 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 filing of this Agreement with the
Secretary of State of the State of Delaware, this Agreement may be terminated
and the Merger may be abandoned for any reason whatsoever by the Board of
Directors of either YES! California or YES! Delaware, or both, notwithstanding
the approval of this Agreement by the shareholders of YES! California or by the
sole stockholder of YES! Delaware, or by both.
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 Secretaries of State of the States of
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the 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 of shares or series thereof of
such Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving Corporation
in the State of Delaware is located at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, in the City of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County of New Castle, and The
Corporation Trust Company is the registered agent of the Surviving Corporation
at such address.
4.6 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 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
California General Corporation Law.
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
resolutions of the Boards of Directors of YES! Delaware and YES! California, is
hereby executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
YES! ENTERTAINMENT CORPORATION
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President,
General Counsel and Secretary
YES! ENTERTAINMENT CORPORATION
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President,
General Counsel and Secretary
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