EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF XXXX, XXXXXX & ASSOCIATES, INC.,
A DELAWARE CORPORATION
AND
XXXX, XXXXXX & ASSOCIATES, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of July 9, 1997, (the
"Agreement"), is between Xxxx, Xxxxxx & Associates, Inc., a Delaware corporation
("Xxxx, Xxxxxx-Delaware") and Xxxx, Xxxxxx & Associates, Inc., a California
corporation ("Xxxx, Xxxxxx-California"). Xxxx, Xxxxxx-Delaware and Xxxx, Xxxxxx-
California are sometimes referred to herein as the "Constituent Corporations."
R E C I T A L S
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X. Xxxx, Xxxxxx-Delaware is a corporation duly organized and
existing under the laws of the State of Delaware and has an authorized capital
stock of 110,000,000 shares, 100,000,000 of which are designated "Common Stock,"
par value $.001 per share, and 10,000,000 shares of Preferred Stock, 1,600,000
of which are designated as "Series A Preferred Stock," par value $.001 per
share. As of July 9, 1997, and as of the date of this Agreement, 1,000 shares of
Common Stock are issued and outstanding, all of which are held by Xxxx, Xxxxxx-
California. No shares of Preferred Stock are issued and outstanding.
X. Xxxx, Xxxxxx-California is a corporation duly organized and
existing under the laws of the State of California and has an authorized capital
stock of 13,600,000 shares, 12,000,000 of which are designated "Common Stock,"
par value $.001 per share, and 1,600,000 of which are designated "Preferred
Stock," par value $.001 per share. Of such authorized shares of Preferred Stock,
1,600,000 shares are designated as Series A Preferred Stock. As of June 9, 1997,
6,433,579 shares of Common Stock and 1,600,000 shares of Series A Preferred
Stock were issued and outstanding.
C. The Board of Directors of Xxxx, Xxxxxx-California has determined
that, for the purpose of effecting the reincorporation of Xxxx, Xxxxxx-
California in the State of Delaware, it is advisable and in the best interests
of Xxxx, Xxxxxx-California that Xxxx, Xxxxxx-California merge with and into
Xxxx, Xxxxxx-Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors of Xxxx, Xxxxxx-Delaware and
Xxxx, Xxxxxx-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.
X. Xxxx, Xxxxxx-Delaware is a wholly owned subsidiary of Xxxx,
Xxxxxx-California.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Xxxx, Xxxxxx-Delaware and Xxxx, Xxxxxx-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
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Delaware General Corporation Law and the California Corporations Code, Xxxx,
Xxxxxx-California shall be merged with and into Xxxx, Xxxxxx-Delaware (the
"Merger"), the separate existence of Xxxx, Xxxxxx-California shall cease and
Xxxx, Xxxxxx-Delaware shall be, and is herein sometimes referred to as, the
"Surviving Corporation," and the name of the Surviving Corporation shall be
"Xxxx, Xxxxxx & Associates, Inc."
1.2 Filing and Effectiveness. The Merger shall become effective when the
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following actions shall have been completed:
A. This Agreement and the Merger shall have been adopted and approved by
the shareholders of Xxxx, Xxxxxx-California and the sole stockholder of Xxxx,
Xxxxxx-Delaware 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.
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
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separate existence of Xxxx, Xxxxxx-California shall cease and Xxxx, Xxxxxx-
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 Xxxx, Xxxxxx-California's Board of Directors, (iii) shall
succeed, without other transfer, to all of the assets, rights, powers and
property of Xxxx, Xxxxxx-California, including all shares of any subsidiary held
by Xxxx, Xxxxxx-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 Xxxx, Xxxxxx-California 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 Xxxx, Xxxxxx-California in the same manner as if Xxxx, Xxxxxx-
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.
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II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
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Xxxx, Xxxxxx-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 Xxxx, Xxxxxx-Delaware as in effect immediately
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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 Xxxx, Xxxxxx-
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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
Amended and Restated Certificate of Incorporation of the Surviving Corporation
or the Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 Xxxx, Xxxxxx-California Common Shares. Upon the Effective Date of the
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Merger, each share of Xxxx, Xxxxxx-California Common Stock, par value $.001 per
share, issued and outstanding immediately prior to the Merger 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 share of Common Stock, par value $.001 per share,
of the Surviving Corporation. No fractional share interests of the Surviving
Corporation's Common Stock shall be issued but shall, instead, be paid in cash
or check by Xxxx, Xxxxxx-Delaware to the holder of such shares in that amount
equal to the fair market value of such fractional shares.
3.2 Xxxx, Xxxxxx-California Preferred Shares. Upon the Effective Date of
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the Merger each share of Series A Preferred Stock of Xxxx, Xxxxxx-California,
par value $.001 per share, issued and outstanding immediately prior to the
Merger 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
or exchanged for one (1) fully paid and nonassessable share of Series A
Preferred Stock of the Surviving Corporation, par value $.001 per share. The
rights, preferences and privileges of the Series A Preferred Stock of the
Surviving Corporation are as set forth in the Certificate of Incorporation of
the Surviving Corporation. No fractional share interests of the Surviving
Corporation's Preferred Stock shall be issued but shall, instead, be paid in
cash or check by Xxxx, Xxxxxx-Delaware to the holder of such shares in that
amount equal to the fair market value of such fractional shares.
3.3 Xxxx, Xxxxxx-California Warrants to Purchase Common Shares. Upon the
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Effective Date of the Merger each warrant to purchase one (1) share of Common
Stock of Xxxx, Xxxxxx-California issued and outstanding immediately prior to the
Merger ("Common Warrant"), shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such Warrant or any other person,
be converted into a warrant to purchase one (1) share of
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Common Stock of the Surviving Corporation, par value $.001 per share ("New
Warrant"); provided, however, that no New Warrant shall be exercisable for
fractional shares of the Surviving Corporation's Common Stock, but instead shall
be rounded-down to and exercisable for the nearest whole number of shares of the
Surviving Corporation's Common Stock. The per share exercise price of each of
the New Warrant shall be the same as the original Common Warrant.
3.4 Xxxx, Xxxxxx-California 1996 Incentive Stock Option Plan.
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(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of Xxxx, Xxxxxx-California under its
1996 Incentive Stock Option Plan (the "1996 Plan"). Each outstanding and
unexercised option to purchase one (1) share of Common Stock of Xxxx, Xxxxxx-
California (an "Option") under the 1996 Plan shall be converted into, subject to
the provisions in paragraph (b) of this section 3.4, an option to purchase one
(1) share of the Surviving Corporation's Common Stock (a "New Option") on the
same terms and described above.
(b) Following the Effective Date of the Merger, the number of
shares of the Surviving Corporation's Common Stock to which an Option holder
would be otherwise entitled upon exercise of an assumed Option shall be rounded
down to the nearest whole number. In addition, no "additional benefits" (within
the meaning of Section 424(a)(2) of the Internal Revenue Code of 1986, as
amended) shall be accorded to the optionees pursuant to the assumption of their
options.
3.5 Xxxx, Xxxxxx-Delaware Common Stock. Upon the Effective Date of the
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Merger, each share of Common Stock, par value $.001 per share, of Xxxx, Xxxxxx-
Delaware issued and outstanding immediately prior thereto shall, by virtue of
the Merger and without any action by Xxxx, Xxxxxx-Delaware, the holder of such
shares or any other person, be canceled and returned to the status of authorized
but unissued shares.
3.6 Exchange of Certificates. After the Effective Date of the Merger,
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each holder of an outstanding certificate representing shares of Xxxx, Xxxxxx-
California Common Stock or Preferred Stock may be asked to surrender the same
for cancellation to an exchange agent, whose name will be delivered to 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 or
Preferred Stock, as the case may be, into which the surrendered shares were
converted as herein provided. Until so surrendered, each outstanding certificate
theretofore representing shares of Xxxx, Xxxxxx-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,
respectively, into which such shares of Xxxx, Xxxxxx-California Common Stock or
Preferred Stock, as the case may be, 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
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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 or Preferred 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
Xxxx, Xxxxxx-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 Xxxx, Xxxxxx-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 Xxxx, Xxxxxx-
Delaware that such tax has been paid or is not payable.
IV. GENERAL
4.1 Covenants of Xxxx, Xxxxxx-Delaware. Xxxx, Xxxxxx-Delaware covenants
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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 Corporations Code.
(b) File any and all documents with the California Franchise Tax
Board necessary for the assumption by Xxxx, Xxxxxx-Delaware of all of the
franchise tax liabilities of Xxxx, Xxxxxx-California.
(c) Take such other actions as may be required by the California
Corporations Code.
4.2 Further Assurances. From time to time, as and when required by Hall,
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Xxxxxx-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Xxxx, Xxxxxx-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 Xxxx, Xxxxxx-Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Xxxx, Xxxxxx-California and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of Xxxx, Xxxxxx-Delaware are fully authorized in the name and on
behalf of Xxxx, Xxxxxx-California or otherwise to take any and all such action
and to execute and deliver any and all such deeds and other instruments.
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4.3 Abandonment. At any time before the Effective Date of the Merger,
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this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Xxxx, Xxxxxx-California or of
Xxxx, Xxxxxx-Delaware, or of both, notwithstanding the approval of this
Agreement by the shareholders of Xxxx, Xxxxxx-California.
4.4 Amendment. The Boards of Directors of the Constituent Corporations
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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 stockholders 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
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in the State of Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 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
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principal place of business of the Surviving Corporation at 0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 and copies thereof will be furnished
to any stockholder of either Constituent Corporation, upon request and without
cost.
4.7 Governing Law. This Agreement shall in all respects be construed,
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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 Corporations Code.
4.8 Counterparts. In order to facilitate the filing and recording of this
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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 Xxxx, Xxxxxx-Delaware and Xxxx, Xxxxxx-
California is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
XXXX, XXXXXX & ASSOCIATES, INC.,
a Delaware corporation
By:/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx,
President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx
Secretary
XXXX, XXXXXX & ASSOCIATES, INC.
a California corporation
By:/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx,
President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx
Secretary
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