EXHIBIT 3.1
CYBERIAN OUTPOST, INC.
A CONNECTICUT CORPORATION
AND
CYBERIAN OUTPOST, INC.
A DELAWARE CORPORATION
PLAN AND AGREEMENT OF MERGER
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This Plan and Agreement of Merger (the "Agreement") is entered into as of the
12 day of June, 1998, by and between CYBERIAN OUTPOST, INC., a Connecticut
corporation ("Cyberian Connecticut"), and CYBERIAN OUTPOST, INC., a Delaware
corporation ("Cyberian Delaware"). Cyberian Connecticut and Cyberian Delaware
are sometimes referred to herein as the "Constituent Corporations."
WHEREAS, Cyberian Connecticut was incorporated under the laws of the State of
Connecticut on March 6, 1995, and has authorized capital stock of 10,000,000
shares of Common Stock, no par value per share, of which 2,226,761.86 shares are
outstanding, 700,000 shares of Series A Preferred Stock, no par value per share,
of which 682,737.53 shares are outstanding, 500,000 shares of Series B Preferred
Stock, no par value per share, of which 326,086.95 shares are outstanding,
3,000,000 shares of Series C Preferred Stock, no par value per share, of which
2,770,125 shares are outstanding, and 800,000 shares of undesignated and
unissued preferred stock, no par value per share; and
WHEREAS, Cyberian Delaware was incorporated under the laws of the State of
Delaware on June 10, 1998 and on the Effective Date (as defined below) will have
authorized capital stock of 50,000,000 shares of Common Stock, par value $.01
per share, of which one (1) share is outstanding, 700,000 shares of Series A
Preferred Stock, $.01 par value per share, of which no shares are outstanding,
500,000 shares of Series B Preferred Stock, $.01 par value per share, of which
no shares are outstanding, 3,000,000 shares of Series C Preferred Stock, $.01
par value per share, of which no shares are outstanding, and 5,800,000 shares of
undesignated and unissued preferred stock, $.01 par value per share; and
WHEREAS, the respective Boards of Directors of Cyberian Connecticut and
Cyberian Delaware deem it advisable and in the best interests of their
respective corporations that Cyberian Connecticut merge with and into Cyberian
Delaware (the "Merger") and to enter into and perform this Agreement pursuant to
the laws of Connecticut and Delaware, as applicable; and
WHEREAS, the Board of Directors and the stockholders of Cyberian Connecticut
have approved this Agreement pursuant to Sections 33-815 and 33-817 of the
Connecticut General Corporation Law ("C.G.C.L."); and
WHEREAS, the Board of Directors and the sole stockholder of Cyberian Delaware
have approved this Agreement pursuant to Sections 251 and 252 of the Delaware
General Corporate Law ("D.G.C.L.").
NOW, THEREFORE, Cyberian Connecticut and Cyberian Delaware hereby agree as
follows:
1. Merger. Subject to the terms and conditions hereof, Cyberian Connecticut
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shall be merged with and into Cyberian Delaware, the separate corporate
existence of Cyberian Connecticut will cease, Cyberian Delaware shall continue
as the surviving corporation under the laws of the State of Delaware (the
"Surviving Corporation"), and the issued and outstanding shares of Cyberian
Connecticut capital stock shall be converted into capital stock of Cyberian
Delaware as provided in Section 6 below, effective upon the date when this
Agreement or the Certificate of Merger evidencing this Agreement is filed with
the Secretaries of State of the States of Delaware and Connecticut (the
"Effective Date").
2. Registered Office of Surviving Corporation. The registered office of the
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Surviving Corporation after the Merger will be 0000 Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxx of New Castle; and the name of the registered agent of the Surviving
Corporation in the State of Delaware after the Merger will be The Xxxxxxxx-Xxxx
Corporation System, Inc.
3. Certificate of Incorporation. The Certificate of Incorporation of
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Cyberian Delaware in effect immediately prior to the Merger will continue to be
the Certificate of Incorporation of the Surviving Corporation immediately after
the Merger.
4. By-Laws. The By-Laws of Cyberian Delaware in effect immediately prior to
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the Merger shall be the By-Laws of the Surviving Corporation immediately upon
and after the Merger, until amended as provided therein or by law.
5. Officers, Directors and Committees. Upon the Effective Date, the number
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of directors of the Surviving Corporation shall be fixed initially at six (6)
directors and the officers, directors and committees of the Board of Directors
of Cyberian Connecticut immediately prior to the Merger shall be the officers,
directors and committees of the Board of Directors of the Surviving Corporation
immediately upon and after the Merger, until their respective successors are
duly elected and qualified in accordance with the Certificate of Incorporation
and By-Laws of the Surviving Corporation.
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6. Conversion of Shares.
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(a) Upon the Effective Date and without any further action on the
part of the Constituent Corporations, the single share of Common Stock of the
Surviving Corporation that is issued and outstanding on the date hereof shall be
cancelled.
(b) Upon the Effective Date, by virtue of the Merger and without any
further action on the part of the Constituent Corporations or their respective
stockholders, (i) all of the 2,226,761.86 shares of Common Stock, no par value,
of Cyberian Connecticut issued and outstanding immediately prior to the Merger
shall automatically be converted on a one-for-one basis into 2,226,761.86 fully
paid and non-assessable shares of Common Stock, $.01 par value per share, of
Cyberian Delaware, (ii) all of the 682,737.53 shares of Series A Preferred
Stock, no par value, of Cyberian Connecticut issued and outstanding immediately
prior to the Merger shall automatically be converted on a one-for-one basis into
682,737.53 fully paid and non-assessable shares of Series A Preferred Stock,
$.01 par value per share, of Cyberian Delaware, (iii) all of the 326,086.95
shares of Series B Preferred Stock, no par value, of Cyberian Connecticut issued
and outstanding immediately prior to the Merger shall automatically be converted
on a one-for-one basis into 326,086.95 fully paid and non-assessable shares of
Series B Preferred Stock, $.01 par value per share, of Cyberian Delaware, and
(iv) all of the 2,770,125 shares of Series C Preferred Stock, no par value, of
Cyberian Connecticut issued and outstanding immediately prior to the Merger
shall automatically be converted on a one-for-one basis into 2,770,125 fully
paid and non-assessable shares of Series C Preferred Stock, $.01 par value per
share, of Cyberian Delaware.
7. Rights to Purchase Stock. Upon the Effective Date, each outstanding
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option and warrant to purchase shares of Common Stock of Cyberian Connecticut
that is outstanding immediately prior to the Effective Date shall, by virtue of
the Merger and without any further action on the part of the Constituent
Corporations or their respective stockholders, be converted into and become an
option or warrant, as the case may be, to purchase the identical number of
shares of Common Stock of Cyberian Delaware , upon the same terms and subject to
the same conditions, as in effect on the Effective Date, including such terms
and conditions as are contained in the 1997 Incentive Stock Plan and the 1998
Incentive Stock Plan. Such number of shares of Common Stock of Cyberian
Delaware shall be reserved for purposes of outstanding options or warrants to
purchase shares of Common Stock of Cyberian Delaware as are equal to the number
of shares of Common Stock of Cyberian Connecticut so reserved as of the
Effective Date. As of the Effective Date, Cyberian Delaware hereby assumes all
obligations of Cyberian Connecticut under all outstanding options and warrants
to purchase shares of Common Stock of Cyberian Connecticut.
Upon the Effective Date, by virtue of the Merger and without any further
action on the part of the Constituent Corporations or their respective
stockholders, the Cyberian Connecticut 1998 Employee, Director and Consultant
Stock Plan shall become the Cyberian Delaware 1998 Employee, Director and
Consultant Stock Plan.
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8. Stock Certificates. On and after the Effective Date, all of the
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outstanding certificates which prior to that time represented shares of the
Common Stock, Series A Preferred Stock, Series B Preferred Stock, and Series C
Preferred Stock of Cyberian Connecticut shall be deemed for all purposes to
evidence ownership of and to represent the shares of Cyberian Delaware into
which the shares of Cyberian Connecticut represented by such certificates have
been converted as herein provided and shall be so registered on the books and
records of Cyberian Delaware or its transfer agent. The registered owner of any
such outstanding stock certificate shall, until such certificate shall have been
surrendered for exchange, transfer or conversion or otherwise accounted for to
Cyberian Delaware or its transfer agent, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend and other
distributions upon the shares of Cyberian Delaware evidenced by such outstanding
certificate as above provided.
9. Status and Rights of Surviving Corporation. Immediately after the Merger,
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the Surviving Corporation shall possess all the rights, privileges and powers,
of a public as well as a private nature, of Cyberian Connecticut and all
property, real, personal and mixed, whether tangible or intangible, and all
debts due to Cyberian Connecticut shall be vested in the Surviving Corporation;
and all and every other interest of Cyberian Connecticut shall be thereafter the
property of the Surviving Corporation as effectively as they were of Cyberian
Connecticut, and the title to any real estate, whether by deed or otherwise,
vested in Cyberian Connecticut or the Surviving Corporation, shall not revert or
be in any way impaired by reason of the Merger. Immediately after the Merger,
all rights of creditors and all liens upon any property of the parties hereto
shall be preserved unimpaired, and all debts, liabilities, obligations, and
duties of the parties hereto shall thenceforth attach to the Surviving
Corporation, and may be enforced against the Surviving Corporation to the same
extent as if said debts, liabilities, obligations and duties had been incurred
or contracted by it.
10. Further Assurances. From time to time, as and when required by Cyberian
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Delaware or by its successors and assigns including without limitation the
Surviving Corporation, there shall be executed and delivered on behalf of
Cyberian Connecticut such deeds and other instruments, and there shall be taken
or caused to be taken by it such further and other action, as shall be
appropriate or necessary in order to vest, perfect in, to conform of record or
otherwise in the Surviving Corporation the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Cyberian Connecticut and otherwise to carry out the purposes of
this Agreement, and the officers and directors of Cyberian Delaware are fully
authorized in the name and on behalf of Cyberian Connecticut or otherwise to
take any and all such action and to execute and deliver any and all such deeds
and other instruments.
11. Termination. Notwithstanding the approval of this Agreement by the
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stockholders of Cyberian Connecticut, this Agreement may be terminated by the
mutual consent of the Boards of Directors of the parties hereto at any time
prior to the filing of this Agreement or related Certificate of Merger with the
Secretary of State of either Delaware or Connecticut.
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12. Amendment. This Agreement may be amended by the mutual consent of the
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Boards of Directors of the parties hereto prior to the filing of this Agreement
or related Certificate of Merger, subject to the restrictions of Section 251(d)
of the D.G.C.L.
13. Miscellaneous. This Agreement may be executed in several counterparts,
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each of which shall be deemed an original, and all of which shall constitute one
and the same document. This Agreement constitutes the entire agreement of the
parties which respect to the subject matter hereof and supersedes any prior or
contemporaneous agreements, oral or written, relating thereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this PLAN AND
AGREEMENT OF MERGER as of the date first written above.
Attest: CYBERIAN OUTPOST, INC.
a Connecticut corporation
/s/ XXXXXXXXX X. XXXX By: /s/ XXXXXX XXXX
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Secretary Xxxxxx Xxxx,
President and Chief Executive Officer
(SEAL)
CYBERIAN OUTPOST, INC.
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXX
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Xxxxxxxxx X. Xxxx,
President, Secretary and Treasurer
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