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EXHIBIT 2.1
FORM OF
AGREEMENT AND PLAN OF MERGER OF
AVANEX CORPORATION
(A DELAWARE CORPORATION)
AND
AVANEX CORPORATION
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of January ___, 2000 (the
"Agreement") is between Avanex Corporation, a Delaware corporation
("Avanex-Delaware"), and Avanex Corporation, a California corporation
("Avanex-California"). Avanex-Delaware and Avanex-California are sometimes
referred to herein as the "Constituent Corporations."
RECITALS
A. Avanex-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 338,100,000
shares, $.001 par value, of which 300,000,000 shares are designated as "Common
Stock", 6,900,000 of which are designated as "Series A Preferred Stock,"
9,525,000 of which are designated as "Series B Preferred Stock", 16,275,000 of
which are designated "Series C Preferred Stock" and 5,400,000 of which are
designated "Series D Preferred Stock". As of December 1, 1999, 1,000 shares of
Common Stock were issued and outstanding, all of which are held by
Avanex-California.
B. Avanex-California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 75,400,000
shares, $.001 par value, of which 50,000,000 shares are designated as "Common
Stock", 4,600,000 of which are designated as "Series A Preferred Stock,"
6,350,000 of which are designated as "Series B Preferred Stock", 10,850,000 of
which are designated "Series C Preferred Stock" and 3,600,000 of which are
designated "Series D Preferred Stock". As of December 3, 1999, 13,334,554 shares
of Common Stock, 4,530,080 shares of Series A Preferred Stock, 6,296,744 shares
of Series B Preferred Stock, 9,032,169 shares of Series C Preferred Stock and
3,487,097 shares of Series D Preferred Stock were issued and outstanding.
C. The Board of Directors of Avanex-California has determined that, for
the purpose of effecting the reincorporation of Avanex-California in the State
of Delaware, it is advisable and in the best interests of Avanex-California and
its shareholders that Avanex-California merge with and into Avanex-Delaware upon
the terms and conditions herein provided.
D. The respective Boards of Directors of Avanex-Delaware and
Avanex-California, the shareholders of Avanex-California and the sole
stockholder of Avanex-Delaware have approved this Agreement and have directed
that this Agreement be executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Avanex-Delaware and Avanex-California hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
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1. MERGER
(a) Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
Avanex-California shall be merged with and into Avanex-Delaware (the "Merger"),
the separate existence of Avanex-California shall cease and Avanex-Delaware
shall be, and is herein sometimes referred to as, the "Surviving Corporation,"
and the name of the Surviving Corporation shall be Avanex Corporation
(b) Filing and Effectiveness. The Merger shall become effective when the
following actions shall have been completed:
(i) 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;
and
(ii) 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."
(c) Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of Avanex-California shall cease and Avanex-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
Avanex-California"s Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Avanex-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 Avanex-California in the same manner as if
Avanex-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.
2. CHARTER DOCUMENTS DIRECTORS AND OFFICERS
(a) Certificate of Incorporation. The Certificate of Incorporation in
the form attached hereto as Exhibit A (the "Certificate of Incorporation") shall
be the Certificate of Incorporation of the Surviving Corporation until duly
amended in accordance with the provisions thereof and applicable law.
(b) Bylaws. The Bylaws of Avanex-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.
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(c) Directors and Officers. The directors and officers of
Avanex-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 Certificate of Incorporation of the Surviving Corporation or the Bylaws
of the Surviving Corporation.
3. MANNER OF CONVERSION OF STOCK
(a) Avanex-California Common Stock. Upon the Effective Date of the
Merger, every two shares of Common Stock of Avanex-California 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 three shares (rounded up to
the nearest whole share) of fully paid and nonassessable Common Stock, $0.001
par value, of the Surviving Corporation.
(b) Avanex-California Preferred Stock. Upon the Effective Date of the
Merger, every two shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock of Avanex-California
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 three shares of
fully paid and nonassessable Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock, $0.001 par value,
respectively, of the Surviving Corporation. Fractional shares will be rounded up
to the nearest whole share.
(c) Avanex-Delaware Common Stock. Upon the Effective Date of the Merger,
each share of Common Stock, $0.001 par value, of Avanex-Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by Avanex-Delaware, the holder of such shares or any other person, be
canceled and returned to the status of authorized but unissued shares.
(d) Stock Options and Warrants. At the Effective Date of the Merger, the
Avanex-California 1998 Stock Plan (the "Plan"), and all options and stock
purchase rights relating to Common Stock (each a "Avanex Option") then
outstanding under such plan, and all rights to acquire stock pursuant to any
outstanding warrants of Avanex-California (each a "Avanex Warrant"), or
otherwise, shall be assumed by Avanex-Delaware in accordance with provisions
described below.
(i) At the Effective Date of the Merger, each outstanding and
unexercised option, warrant and other right to purchase shares of capital stock
of Avanex-California shall be assumed by the Surviving Corporation and shall
become an option, warrant or right to purchase a number of shares equal to 1.5
times that number of shares subject to Avanex-California's option (rounded down
to the nearest share), at the exercise price equal to the exercise price of
Avanex-California's option multiplied by 2/3 (rounded up to the nearest cent)
and each existing and effective employee stock benefit plan of Avanex-California
(the "Stock Plans") shall similarly be assumed by the Surviving Corporation for
all intents and purposes as if such plan, including the reservation of shares of
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Common Stock for issuance pursuant thereto (multiplied by 1.5), had been
originally adopted and authorized by the Surviving Corporation.
(ii) Each Avanex Option and Avanex Warrant so assumed by
Avanex-Delaware under this Agreement shall continue to have, and be subject to,
the same terms and conditions set forth in the Plan and/or as provided in the
respective agreements governing such Avanex Option or Avanex Warrant immediately
prior to the Effective Date of the Merger.
(iii) It is the intention of the parties that the Avanex Options
assumed by Avanex-Delaware qualify following the Effective Date of the Merger as
incentive stock options as defined in Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"), to the extent the Avanex Options qualified as
incentive stock options immediately prior to the Effective Date of the Merger.
(iv) Promptly following the Effective Date of the Merger,
Avanex-Delaware will issue to each holder of an outstanding Avanex Option and
Avanex Warrant a document evidencing the foregoing assumption of such Avanex
Option and Avanex Warrant by Avanex-Delaware.
(v) At the Effective Date of the Merger, Avanex-California shall
assign to Avanex-Delaware any and all rights of repurchase pertaining to shares
of Avanex-California Common Stock issued upon exercise of stock options,
pursuant to stock purchase agreements or otherwise.
(e) Exchange of Certificates. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of
Avanex-California Common Stock may, at such stockholder"s option, surrender the
same for cancellation to such institution as Avanex-Delaware shall appoint at
the time to act 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. Until so
surrendered, each outstanding certificate theretofore representing shares of
Avanex-California Common 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 Avanex-California Common 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 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 Avanex-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 the Surviving Corporation"s Common 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 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 the Surviving Corporation that such tax has been paid or
is not payable.
4. GENERAL
(a) Covenants of Avanex-Delaware. Avanex-Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
(i) 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;
(ii) File any and all documents with the appropriate tax authority
of the State of California necessary for the assumption by
Avanex-Delaware of all of the corporate and/or franchise tax
liabilities of Avanex-California; and
(iii) Take such other actions as may be required by the California
General Corporation Law.
(b) Further Assurances. From time to time, as and when required by
Avanex-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Avanex-California such deeds and other instruments, and
there shall be taken or caused to be taken by Avanex-Delaware and
Avanex-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
Avanex-Delaware the title to and possession of all the property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of
Avanex-California and otherwise to carry out the purposes of this Agreement, and
the officers and directors of Avanex-Delaware are fully authorized in the name
and on behalf of Avanex-California or otherwise to take any and all such action
and to execute and deliver any and all such deeds and other instruments.
(c) 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 Avanex-California or
Avanex-Delaware, or both, notwithstanding the approval of this Agreement by the
shareholders of Avanex-California or by the sole stockholder of Avanex-Delaware,
or by both.
(d) Amendment. The Boards of Directors of the Constituent Corporations
may amend this Agreement any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the
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Secretaries of State of the States of California and Delaware, provided that
subsequent to the adoption of this Agreement by the shareholders of either
Constituent Corporation, this Agreement shall not be amended except in
compliance with the requirements of the California General Corporation Law and
the Delaware General Corporation Law.
(e) Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in the
city of Wilmington, County of New Castle, and The Corporation Trust Company is
the registered agent of the Surviving Corporation at such address.
(f) 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.
(g) 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 the provisions of the California General Corporation Law.
(h) 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 Avanex-Delaware and Avanex-California,
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
AVANEX CORPORATION
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, President
and Chief Executive Officer
ATTEST:
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▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, Secretary
AVANEX CORPORATION
a California corporation
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, President
and Chief Executive Officer
ATTEST:
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▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, Secretary
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EXHIBIT A
CERTIFICATE OF INCORPORATION