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Exhibit 2.1
MERGER AGREEMENT
This Merger Agreement (the "MERGER AGREEMENT") is entered into as of
________ __, 2000 by and among Monolithic System Technology, Inc., a California
corporation ("MOSYS CALIFORNIA"), and Monolithic System Technology, Inc., a
Delaware corporation and a wholly-owned subsidiary of MoSys California ("MOSYS
DELAWARE" and, together with MoSys California, the "PARTIES").
RECITALS
MoSys Delaware is a newly incorporated corporation, without business or
substantial assets or liabilities, formed and organized for the purpose of
acting as the surviving corporation of the merger of MoSys California into MoSys
Delaware (the "MERGER"). The purpose of the Merger is to reincorporate MoSys
California as a Delaware corporation, and the Merger is intended to qualify as a
mere change in identity, form, or place of organization under section
368(a)(1)(F) of the Internal Revenue Code of 1986, as amended.
AGREEMENT
NOW, THEREFORE, the parties do hereby agree as follows:
ARTICLE I
THE CONSTITUENT CORPORATIONS
1.1 MOSYS DELAWARE. MoSys Delaware is incorporated under the laws of
the State of Delaware and will be the surviving corporation in the Merger. MoSys
Delaware is authorized to issue an aggregate of 120,000,000 shares of Common
Stock, $0.01 par value per share ("MOSYS DELAWARE COMMON STOCK"), and 20,000,000
shares of Preferred Stock, $0.01 par value per share, of which 500,000 shares
are designated Series A Preferred Stock, 1,000,000 shares are designated Series
B Preferred Stock, 1,010,000 shares are designated Series C Preferred Stock,
300,000 shares are designated Series D Preferred Stock, 264,487 shares are
designated Series E Preferred Stock, 1,224,487 shares are designated Series F
Preferred Stock, 290,000 shares are designated Series F-1 Preferred Stock,
1,343,433 shares are designated Series G Preferred Stock, and 650,000 shares are
designated Series H Preferred Stock (collectively, with the Series A through
Series G Preferred Stock, the "MOSYS DELAWARE PREFERRED STOCK").
1.2 MOSYS CALIFORNIA. MoSys California is incorporated under the laws
of the State of California and will be the disappearing corporation in the
Merger. MoSys California is authorized to issue an aggregate of 30,000,000
shares of Common Stock, no par value ("MOSYS CALIFORNIA COMMON STOCK"), of which
9,839,035 shares are outstanding as of the date of this Agreement; and 9,500,000
shares of Preferred Stock, no par value, of which 500,000 shares are designated
Series A Preferred Stock, of which 500,000 shares are outstanding as of the date
of this Agreement; 1,000,000 shares are designated Series B Preferred Stock, of
which 1,000,000 shares are outstanding as of the date of this Agreement;
1,010,000 shares are designated Series C Preferred Stock, of which 1,010,000
shares are outstanding as of the date of this Agreement;
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300,000 shares are designated Series D Preferred Stock, of which 300,000
shares are outstanding as of the date of this Agreement; 264,487 shares are
designated Series E Preferred Stock, of which 264,487 shares are outstanding
as of the date of this Agreement; 1,224,487 shares are designated Series F
Preferred Stock, of which 1,224,487 shares are outstanding as of the date of
this Agreement; 290,000 shares are designated Series F-1 Preferred Stock, of
which 290,000 shares are outstanding as of the date of this Agreement;
1,343,433 shares are designated Series G Preferred Stock, of which 1,343,433
shares are outstanding as of the date of this Agreement; and 650,000 shares
are designated Series H Preferred Stock, of which 650,000 shares are
outstanding as of the date of this Agreement (collectively, with the Series A
through Series G Preferred Stock, the "MOSYS CALIFORNIA PREFERRED STOCK").
ARTICLE II
THE MERGER
2.1 CONDITIONS TO CLOSING OF THE MERGER. Completion and effectiveness
of the Merger shall not occur unless and until all of the following conditions
have been met:
(a) All necessary approvals of the Merger by shareholders of MoSys
California and the stockholder of MoSys Delaware shall have been obtained.
(b) MoSys California shall be and remain in good standing in the State
of California, and MoSys Delaware shall be and remain in good standing in the
State of Delaware.
2.2 CLOSING OF MERGER. As soon as all conditions to the Merger have
been satisfied, this Merger Agreement, along with certificates meeting the
requirements of the California General Corporation Law and the Delaware General
Corporation Law, shall be filed with the Secretary of State of California and
the Secretary of State of Delaware. At the time such filings are both effected,
or, if later, at the date specified pursuant to Section 103(d) of the Delaware
General Corporation Law, the Merger shall become effective ("EFFECTIVE TIME").
2.3 EFFECT OF MERGER.
(a) At the Effective Time, MoSys California shall be merged
into MoSys Delaware and the separate corporate existence of MoSys California
shall thereupon cease. MoSys Delaware shall be the surviving corporation in the
Merger (the "SURVIVING CORPORATION") and the separate corporate existence of
MoSys Delaware, with all its purposes, objects, rights, privileges, powers,
immunities and franchises, shall continue unaffected and unimpaired by the
Merger.
(b) MoSys Delaware, as the Surviving Corporation, shall
succeed to all of the rights, privileges, powers, immunities and franchises of
MoSys California, all of the properties and assets of MoSys California and all
of the debts, choses in action and other interests due or belonging to MoSys
California and shall be subject to, and responsible for, all of the debts,
liabilities and obligations of MoSys California with the effect set forth in the
California General Corporation Law and the Delaware General Corporation Law, as
applicable.
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ARTICLE III
CERTIFICATE OF INCORPORATION AND BYLAWS
OF THE SURVIVING CORPORATION
3.1 CERTIFICATE OF INCORPORATION. At the Effective Time, the
Certificate of Incorporation of MoSys Delaware, as the Surviving Corporation,
shall continue in the form in effect immediately prior to the Effective Time.
3.2 BYLAWS. At the Effective Time, the Bylaws of MoSys Delaware, as the
Surviving Corporation, shall continue in the form in effect immediately prior to
the Effective Time.
ARTICLE IV
MANNER AND BASIS OF CONVERTING CAPITAL STOCK AND SECURITIES
4.1 CONVERSION OF STOCK AND OPTIONS. At the Effective Time:
(a) Each share of MoSys California Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action by the constituent corporations, the holder of
such share, or any other person, be converted into and exchanged for one fully
paid and nonassessable share of MoSys Delaware Common Stock.
(b) Each share of MoSys California Series A Preferred Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action by the constituent corporations, the holder
of such share, or any other person, be converted into and exchanged for one
fully paid and nonassessable share of MoSys Delaware Series A Preferred Stock.
(c) Each share of MoSys California Series B Preferred Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action by the constituent corporations, the holder
of such share, or any other person, be converted into and exchanged for one
fully paid and nonassessable share of MoSys Delaware Series B Preferred Stock.
(d) Each share of MoSys California Series C Preferred Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action by the constituent corporations, the holder
of such share, or any other person, be converted into and exchanged for one
fully paid and nonassessable share of MoSys Delaware Series C Preferred Stock.
(e) Each share of MoSys California Series D Preferred Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action by the constituent corporations, the holder
of such share, or any other person, be converted into and exchanged for one
fully paid and nonassessable share of MoSys Delaware Series D Preferred Stock.
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(f) Each share of MoSys California Series E Preferred Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action by the constituent corporations, the holder
of such share, or any other person, be converted into and exchanged for one
fully paid and nonassessable share of MoSys Delaware Series E Preferred Stock.
(g) Each share of MoSys California Series F Preferred Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action by the constituent corporations, the holder
of such share, or any other person, be converted into and exchanged for one
fully paid and nonassessable share of MoSys Delaware Series F Preferred Stock.
(h) Each share of MoSys California Series F-1 Preferred Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action by the constituent corporations, the holder
of such share, or any other person, be converted into and exchanged for one
fully paid and nonassessable share of MoSys Delaware Series F-1 Preferred Stock.
(i) Each share of MoSys California Series G Preferred Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action by the constituent corporations, the holder
of such share, or any other person, be converted into and exchanged for one
fully paid and nonassessable share of MoSys Delaware Series G Preferred Stock.
(j) Each share of MoSys California Series H Preferred Stock
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action by the constituent corporations, the holder
of such share, or any other person, be converted into and exchanged for one
fully paid and nonassessable share of MoSys Delaware Series H Preferred Stock.
(k) MoSys Delaware, as the Surviving Corporation, shall assume
the stock option plans (including the 1996 Stock Plan and the 1992 Stock Option
Plan) and all other employee benefit plans of MoSys California. Each outstanding
and unexercised option or warrant to purchase shares of MoSys California Common
Stock shall become an option or warrant to purchase MoSys Delaware Common Stock
on the basis of one (1) share of MoSys Delaware Common Stock for each share of
MoSys California Common Stock issuable pursuant to any such option or warrant on
the same terms and conditions and at an exercise price per share equal to the
exercise price per share applicable to any such MoSys California option or
warrant at the Effective Time. A number of shares of MoSys Delaware Common Stock
shall be reserved for issuance upon the exercise of options and warrants equal
to the number of shares of MoSys California Common Stock so reserved immediately
prior to the Effective Time. Each share of MoSys California Common Stock that is
reserved but unissued under the 1996 Stock Plan and the 1992 Stock Option Plan
shall be canceled.
(l) Each share of MoSys Delaware Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action by
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MoSys Delaware, the holder of such shares or any other person, be canceled
and returned to the status of authorized but unissued shares.
4.2 EXCHANGE CERTIFICATES. (a) After the Effective Time, each holder of
an outstanding certificate representing shares of MoSys California Common Stock
or MoSys California Preferred Stock may be asked to surrender the same for
cancellation to an exchange agent, whose name will be delivered to such 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 MoSys Delaware Common Stock or MoSys
Delaware 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 MoSys California Common Stock or
MoSys California Preferred Stock shall be deemed for all purposes to represent
the number of shares of MoSys Delaware Common Stock or MoSys Delaware Preferred
Stock, as the case may be, into which the shares of MoSys California Common
Stock or MoSys California Preferred Stock were converted in the Merger.
(b) The registered owner on the books and records of MoSys Delaware 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 MoSys Delaware or the Exchange Agent, have and be entitled to
exercise all voting and other rights with respect to and to receive dividends
and other distributions upon the shares of MoSys Delaware Common Stock or MoSys
Delaware Preferred Stock, as the case may be, represented by such outstanding
certificate as provided above.
(c) Each certificate representing MoSys Delaware Common Stock or MoSys
Delaware Preferred Stock so issued in the Merger shall bear the same legends, if
any, with respect to the restrictions on transferability as the certificates of
MoSys California so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of MoSys Delaware in compliance with
applicable laws, or other such additional legends as are agreed upon by the
holder and MoSys Delaware.
(d) If any certificate for shares of MoSys Delaware Common Stock or
MoSys Delaware Preferred Stock is to be issued to a person or entity ("PERSON")
other than the Person in whose name the certificate surrendered in exchange
therefor is registered, it will be a condition of the issuance thereof that the
certificate so surrendered will 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 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 MoSys Delaware
that such tax has been paid or is not payable.
(e) If any certificate shall have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the Person claiming such certificate
to be lost, stolen or destroyed and, if required by MoSys Delaware, the posting
by such Person of a bond in such reasonable amount as MoSys Delaware may direct
as indemnity against any claim that may be made against it with
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respect to such certificate, MoSys Delaware will cause a new certificate to
be issued in exchange for such lost, stolen or destroyed certificate.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 TERMINATION. This Merger Agreement may be terminated by either
party at any time prior to the Effective Time.
5.2 AMENDMENT. This Merger Agreement may be amended by the Parties at
any time before or after approval hereof by the shareholders of MoSys California
and MoSys Delaware, but, after any such approval, no amendment which by law
requires the further approval of the shareholders of any of MoSys California
and/or MoSys Delaware may be made without such approval having first been
obtained. This Merger Agreement may not be amended except by an instrument in
writing signed on behalf of each of the Parties.
5.3 COUNTERPARTS. This Merger Agreement may be executed in
counterparts.
5.4 LAW GOVERNING. This Merger Agreement shall be interpreted in
accordance with and governed by the laws of the State of Delaware, without
regard to principles of conflicts of law.
5.5 SEVERABILITY. If any of the provisions of this Merger Agreement are
determined to be void or unenforceable, such provision shall be severed from
this agreement without affecting the validity and enforceability of any of the
other provisions hereof.
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IN WITNESS WHEREOF, the parties have duly executed this Merger
Agreement as of the date first written above.
MONOLITHIC SYSTEM TECHNOLOGY, INC., MONOLITHIC SYSTEM TECHNOLOGY,
A CALIFORNIA CORPORATION INC., A DELAWARE CORPORATION
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By: Fu-Chieh Hsu By: Fu-Chieh Hsu
Title: President Title: President
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By: By:
-------------------------------- --------------------------
Title: Secretary Title: Secretary
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MONOLITHIC SYSTEM TECHNOLOGY, INC.,
A CALIFORNIA CORPORATION
CERTIFICATE OF APPROVAL OF MERGER AGREEMENT
Fu-Chieh Hsu and Wing-Yu Leung certify that:
1. They are the president and secretary, respectively of Monolithic
System Technology, Inc., a California corporation.
2. The Merger Agreement in the form attached as EXHIBIT A was duly
approved by the board of directors and the shareholders of the corporation.
3. The following classes of shares are issued and outstanding and
entitled to vote: 9,839,035 shares of Common Stock and 6,582,472 shares of
Preferred Stock. The approval of more than 50% of the shares of each class is
required to approve the Merger Agreement.
4. The principal terms of the Merger Agreement in the form attached
were approved by a vote of a number of shares of each class which exceeded the
vote required.
We further 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 our own knowledge.
Date: , 2000 ----------------------------
--------- ---- Fu-Chieh Hsu, President
Date: , 2000 ----------------------------
--------- ---- Wing-Yu Leung, Secretary
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MONOLITHIC SYSTEM TECHNOLOGY, INC.,
A DELAWARE CORPORATION
CERTIFICATE OF APPROVAL OF MERGER AGREEMENT
Fu-Chieh Hsu and Wing-Yu Leung certify that:
1. They are the president and secretary, respectively of Monolithic
System Technology, Inc., a Delaware corporation.
2. The Merger Agreement in the form attached as EXHIBIT A was duly
approved by the board of directors and the sole stockholder of the corporation.
3. The following classes of shares are issued and outstanding and
entitled to vote: 100 shares of Common Stock. The approval of more than 50% of
the shares of such class is required to approve the Merger Agreement.
4. The principal terms of the Merger Agreement in the form attached
were approved by a vote of a number of shares of each class which exceeded the
vote required.
We further 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 our own knowledge.
Date: , 2000 ---------------------------
--------- ---- Fu-Chieh Hsu, President
Date: , 2000 ---------------------------
--------- ---- Wing-Yu Leung, Secretary
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