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EXHIBIT 4.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered into
as of March 24, 2000, by and between Telocity, Inc., a California corporation
("Telocity California"), and Telocity Delaware, Inc., a Delaware corporation
("Telocity Delaware").
WITNESSETH:
WHEREAS, Telocity Delaware is a corporation duly organized and existing
under the laws of the State of Delaware;
WHEREAS, Telocity California is a corporation duly organized and existing
under the laws of the State of California;
WHEREAS, on the date of this Merger Agreement, Telocity Delaware has
authority to issue 250,000,000 shares of Common Stock, par value $0.001 per
share (the "Telocity Delaware Common Stock"), of which 100 shares are issued and
outstanding and owned by Telocity California and 64,701,478 shares of Preferred
Stock, par value $0.001 per share (the "Telocity Delaware Preferred Stock), of
which no shares are issued or outstanding;
WHEREAS, on the date of this Merger Agreement, Telocity California has
authority to issue 90,000,000 shares of Common Stock (the "Telocity California
Common Stock"), of which 22,136,250 shares are issued and outstanding, and
54,701,478 shares of Preferred Stock (the "Telocity California Preferred
Stock"), of which 50,663,879 shares are issued and outstanding;
WHEREAS, the respective Boards of Directors for Telocity Delaware and
Telocity California have determined that, for the purpose of effecting the
reincorporation of Telocity California in the State of Delaware, it is advisable
and to the advantage of said two corporations and their shareholders that
Telocity California merge with and into Telocity Delaware upon the terms and
conditions herein provided; and
WHEREAS, the respective Boards of Directors of Telocity Delaware and
Telocity California, the shareholders of Telocity California, and the sole
stockholder of Telocity Delaware have adopted and approved this Merger
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Telocity California and Telocity Delaware hereby agree to merge as
follows:
1. Merger. Telocity California shall be merged with and into Telocity
Delaware, and Telocity Delaware shall survive the merger ("Merger"), effective
upon the date when this Merger Agreement is made effective in accordance with
applicable law (the "Effective Date").
2. Governing Documents. The Certificate of Incorporation of Telocity
Delaware shall continue to be the Certificate of Incorporation of Telocity
Delaware as the surviving Corporation.
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The Bylaws of Telocity Delaware, in effect on the Effective Date, shall
continue to be the Bylaws of Telocity Delaware as the surviving Corporation
without change or amendment until further amended in accordance with the
provisions thereof and applicable laws.
3. Directors and Officers. The directors and officers of Telocity
California shall become the directors and officers of Telocity Delaware upon the
Effective Date and any committee of the Board of Directors of Telocity
California shall become the members of such committees for Telocity Delaware.
4. Succession. On the Effective Date, Telocity Delaware shall succeed to
Telocity California in the manner of and as more fully set forth in Section 259
of the General Corporation Law of the State of Delaware.
5. Further Assurances. From time to time, as and when required by
Telocity Delaware or by its successors and assigns, there shall be executed and
delivered on behalf of Telocity California 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 or confirm, of
record or otherwise, in Telocity Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Telocity California, and otherwise to carry out the purposes of
this Merger Agreement and the officers and directors of Telocity Delaware are
fully authorized in the name and on behalf of Telocity California or otherwise
to take any and all such action and to execute and deliver any and all such
deeds and other instruments.
6. Stock of Telocity California.
a. Common Stock. Upon the Effective Date, by virtue of the Merger
and without any action on the part of the holder thereof, each share of Telocity
California Common Stock outstanding immediately prior thereto shall be changed
and converted into one fully paid and nonassessable share of Telocity Delaware
Common Stock.
b. Preferred Stock. Upon the Effective Date, by virtue of the Merger
and without any action on the part of the holder thereof, each share of each
series of Telocity California Preferred Stock outstanding immediately prior
thereto shall be changed and converted into one fully paid and nonassessable
share of Telocity Delaware Preferred Stock of an equivalent series.
c. Fractional Shares. No fractional shares which a Telocity Delaware
stockholder would otherwise be entitled to receive by reason of the exchange of
Telocity California stock for Telocity Delaware stock shall be issued. In lieu
of any fractional shares to which a holder would otherwise be entitled, Telocity
Delaware shall pay cash equal to such fraction multiplied by the fair market
value of the Common Stock on the Effective Date as determined by the Board of
Directors of Telocity Delaware and for the Preferred Stock, such fraction
multiplied by the Conversion Prices as defined in Article FOURTH, subparagraph
4(a) of this Certificate of Incorporation.
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7. Stock Certificates. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of Telocity
California stock shall be deemed for all purposes to evidence ownership of and
to represent the shares of Telocity Delaware stock into which the shares of
Telocity California stock represented by such certificates have been converted
as herein provided. The registered owner on the books and records of Telocity
Delaware or its transfer agent of any such outstanding stock certificate shall,
until such certificate shall have been surrendered for transfer or otherwise
accounted for to Telocity 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 Telocity Delaware stock
evidenced by such outstanding certificate as above provided.
8. Options and Warrants. Upon the Effective Date, each outstanding
option, warrant or other right to purchase shares of Telocity California stock,
including those options granted under the 1999 Stock Option Plan (the "Option
Plan") of Telocity California, shall be converted into and become an option,
warrant, or right to purchase the number of shares of Telocity Delaware stock,
at a price per share equal to the exercise price of the option, warrant or right
to purchase Telocity California stock, and upon the same terms and subject to
the same conditions as set forth in the Option Plans and other agreements
entered into by Telocity California pertaining to such options, warrants, or
rights. A number of shares of Telocity Delaware stock shall be reserved for
purposes of such options, warrants, and rights equal to the number of shares of
Telocity California stock so reserved as of the Effective Date. As of the
Effective Date, Telocity Delaware shall assume all obligations of Telocity
California under agreements pertaining to such options, warrants, and rights,
including the Option Plans, and the outstanding options, warrants, or other
rights, or portions thereof, granted pursuant thereto.
9. Other Employee Benefit Plans. As of the Effective Date, Telocity
Delaware hereby assumes all obligations of Telocity California under any and all
employee benefit plans in effect as of said date or with respect to which
employee rights or accrued benefits are outstanding as of said date.
10. Outstanding Common Stock of Telocity Delaware. Forthwith upon the
Effective Date, the One Hundred (100) shares of Telocity Delaware Common Stock
presently issued and outstanding in the name of Telocity California shall be
canceled and retired and resume the status of authorized and unissued shares of
Telocity Delaware Common Stock, and no shares of Telocity Delaware Common Stock
or other securities of Telocity Delaware shall be issued in respect thereof.
11. Covenants of Telocity Delaware. Telocity Delaware covenants and agrees
that it will, on or before the Effective Date:
a. Qualify to do business as a foreign corporation in the State of
California, and in all other states in which Telocity California is so qualified
and in which the failure so to qualify would have a material adverse impact on
the business or financial condition of Telocity Delaware. In connection
therewith, Telocity Delaware shall irrevocably appoint an agent for service of
process as required under the provisions of Section 2105 of the California
Corporations
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Code and under applicable provisions of state law in other states in which
qualification is required hereunder.
b. File any and all documents with the California Franchise Tax
Board necessary to the assumption by Telocity Delaware of all of the franchise
tax liabilities of Telocity California.
12. Amendment. At any time before or after approval and adoption by the
stockholders of Telocity California, this Merger Agreement may be amended in any
manner as may be determined in the judgment of the respective Boards of
Directors of Telocity Delaware and Telocity California to be necessary,
desirable or expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purposes and intent of this Merger Agreement.
13. Abandonment. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either Telocity California or Telocity Delaware or both,
notwithstanding approval of this Merger Agreement by the sole stockholder of
Telocity Delaware and the shareholders of Telocity California.
14. Counterparts. In order to facilitate the filing and recording of this
Merger Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by resolution of the Board of Directors of Telocity California and Telocity
Delaware, is hereby executed on behalf of each of said two corporations by their
respective officers thereunto duly authorized.
TELOCITY DELAWARE, INC., a Delaware
corporation
By: /s/ PATTI HART
-----------------------------
Patti Hart, President and CEO
TELOCITY, INC., a California corporation
By: /s/ PATTI HART
-----------------------------
Patti Hart, President and CEO
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CERTIFICATE OF SECRETARY
OF
TELOCITY DELAWARE, INC.
(a Delaware corporation)
I, Scott Martin, the Secretary of Telocity Delaware, Inc., a Delaware
corporation (the "Corporation"), hereby certify that the Agreement and Plan of
Merger to which this Certificate is attached was duly signed on behalf of the
Corporation by its President and was duly approved and adopted by a unanimous
vote of the outstanding stock entitled to vote thereon by written consent of the
sole stockholder of the Corporation dated March 24, 2000.
Executed effective on the 24th day of March, 2000.
/s/ SCOTT MARTIN
----------------
Scott Martin
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CERTIFICATE OF APPROVAL OF
AGREEMENT AND PLAN OF MERGER OF
TELOCITY, INC.
(a California corporation)
Patti Manuel-Hart and Scott Martin certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of Telocity, Inc., a California corporation (the "Corporation").
2. This Certificate is attached to the Agreement and Plan of Merger dated
as of March 24, 2000, providing for the merger of the Corporation with and into
a Delaware corporation.
3. The Agreement and Plan of Merger in the form attached hereto (the
"Merger Agreement") was approved by the Board of Directors of the Corporation at
a meeting duly noticed and held on January 4, 2000.
4. The total number of outstanding shares of the Corporation entitled to
vote on the merger was 22, 136,250 shares of Common Stock, 13,150,000 shares of
Series A Preferred Stock, 13,181,818 shares of Series B Preferred Stock, and
24,332,061 shares of Series C Preferred Stock.
5. The principal terms of the Merger Agreement were approved by an
affirmative vote which exceeded the vote required, such vote being a majority of
the total number of outstanding shares of Common Stock, and sixty percent (60%)
of the outstanding shares of the Series A Preferred Stock, Series B Preferred
Stock, and Series C Preferred Stock voting together as a single class.
Dated: March 24, 2000.
By: /s/ PATTI HART
-----------------------------
Patti Hart, President and CEO
/s/ SCOTT MARTIN
-----------------------------
Scott Martin, Secretary
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The undersigned, Patti Hart and Scott Martin, President and Secretary,
respectively, of Telocity, Inc., a California corporation, declare under penalty
of perjury under the laws of the State of California that the matters set forth
in this Certificate are true and correct of their own knowledge.
Executed at Cupertino, California, on March 24, 2000.
By: /s/ PATTI HART
-----------------------------
Patti Hart, President and CEO
/s/ SCOTT MARTIN
-----------------------------
Scott Martin, Secretary
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