Agreement and Plan of Merger - Liquidmetal Technologies Inc. and Liquidmetal Technologies
AGREEMENT AND PLAN OF MERGER OF
LIQUIDMETAL TECHNOLOGIES, INC. (A DELAWARE CORPORATION)
AND
LIQUIDMETAL TECHNOLOGIES (A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER, dated as of May 21, 2003
(the "Agreement"), is made by and between Liquidmetal Technologies, Inc., a
Delaware corporation ("Liquidmetal Delaware"), and Liquidmetal Technologies, a
California corporation ("Liquidmetal California"). Liquidmetal Delaware and
Liquidmetal California are sometimes referred to herein as the "Constituent
Corporations."
RECITALS
A. Liquidmetal Delaware is a corporation duly organized
and existing under the laws of the State of Delaware and has an authorized
capital of 110,000,000 shares, 100,000,000 of which are Common Stock, $0.001 par
value per share, and 10,000,000 of which Preferred Stock, $0.001 par value per
share. The Preferred Stock of Liquidmetal Delaware is undesignated as to series,
rights, preferences, privileges, or restrictions. As of the date hereof, 100
shares of Common Stock of Liquidmetal Delaware were issued and outstanding, all
of which were held by Liquidmetal California, and no shares of Preferred Stock
of Liquidmetal Delaware were issued and outstanding.
B. Liquidmetal California is a corporation duly
organized and existing under the laws of the State of California and has an
authorized capital of 210,000,00 shares, 200,000,00 of which are Common Stock,
no par value, and 10,000,000 of which Preferred Stock, no par value.
C. The Board of Directors of Liquidmetal California has
determined that, for the purpose of effecting the reincorporation of Liquidmetal
California in the State of Delaware, it is advisable and in the best interests
of Liquidmetal California and its shareholders that Liquidmetal California merge
with and into Liquidmetal Delaware upon the terms and conditions herein
provided.
D. The respective Boards of Directors of Liquidmetal
Delaware and Liquidmetal 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.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Liquidmetal Delaware and Liquidmetal California
hereby agree, subject to the terms and conditions hereinafter set forth, as
follows:
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ARTICLE I
MERGER
1.1. Merger. In accordance with the provisions of this
Agreement, the Delaware General Corporation Law and the California General
Corporation Law, Liquidmetal California shall be merged with and into
Liquidmetal Delaware (the "Merger"), the separate existence of Liquidmetal
California shall cease, and Liquidmetal Delaware shall survive the Merger and
shall continue to be governed by the laws of the State of Delaware. Liquidmetal
Delaware shall be, and is herein sometimes referred to as, the "Surviving
Corporation." The name of the Surviving Corporation shall be Liquidmetal
Technologies, Inc.
1.2. Filing and Effectiveness. The Merger shall become
effective when the following actions shall have been completed: (i) this
Agreement and Merger shall have been adopted and approved by the stockholders of
each Constituent Corporation in accordance with the requirements of the Delaware
General Corporation Law and the California Corporations Code; (ii) 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; (iii) 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 (iv) 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."
1.3. Effect of the Merger. Upon the Effective Date of the
Merger, the separate existence of Liquidmetal California shall cease and
Liquidmetal 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 Liquidmetal California's Board of
Directors, (iii) shall succeed, without other transfer, to all of the assets,
rights, powers and property of Liquidmetal 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
Liquidmetal Delaware 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 Liquidmetal California in the same manner as if
Liquidmetal Delaware had itself incurred them, all is more fully provided under
the applicable provisions of the Delaware General Corporation Law and the
California General Corporation Law.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1. Certificate of Incorporation. The Certificate of
Incorporation of Liquidmetal Delaware as in effect immediately prior to the
Effective Date of the Merger shall
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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 Liquidmetal 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.
2.3. Directors and Officers. The directors and officers of
Liquidmetal California 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, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
ARTICLE III
MANNER OF CONVERSION OF STOCK
3.1. Liquidmetal California Common Stock. Upon the
Effective Date of the Merger, each share of Liquidmetal California Common Stock
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 one (1) fully
paid and nonassessable share of Common Stock, $0.001 par value per share, of the
Surviving Corporation.
3.2. Liquidmetal California Options and Employee Benefits.
(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume and continue the stock option and related plans and all
other employee benefit plans of Liquidmetal California. Each outstanding and
unexercised option or other right to purchase Liquidmetal California Common
Stock shall become an option or right to purchase the Surviving Corporation's
Common Stock on the basis of one share of the Surviving Corporation's Common
Stock for each share of Liquidmetal California Common Stock issuable pursuant to
any such option or related right, on the same terms and conditions and at an
exercise price per share equal to the exercise price applicable to any such
Liquidmetal California option or related right at the Effective Date of the
Merger.
(b) A number of shares of the Surviving Corporation's
Common Stock shall be reserved for issuance upon the exercise of options and
related rights equal to the number of shares of Liquidmetal California Common
Stock so reserved immediately prior to the Effective Date of the Merger.
3.3. Liquidmetal Delaware Common Stock. Upon the Effective
Date of the Merger, each share of Common Stock, no par value, of Liquidmetal
Delaware issued and outstanding immediately prior thereto shall, by virtue of
the Merger and without any action by Liquidmetal Delaware, the holder of such
shares or any other person, be canceled and returned to the status of authorized
but unissued shares.
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3.4. Exchange of Certificates. After the Effective Date of
the Merger, each holder of an outstanding certificate representing shares of
Liquidmetal California Common Stock may, at such stockholder's option, surrender
the same for cancellation to American Stock Transfer & Trust Company, 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. Unless and until so
surrendered, each outstanding certificate theretofore representing shares of
Liquidmetal California Common Stock shall be deemed for all purposes to
represent the number of shares of the Surviving Corporation's Common Stock into
which such shares of Liquidmetal California Common Stock were converted in the
Merger. The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any shares of stock represented by 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 Liquidmetal 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 Liquidmetal 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
Liquidmetal Delaware or 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 Liquidmetal Delaware that such tax has been paid or is not
payable.
ARTICLE IV
GENERAL
4.1. Covenants of Liquidmetal Delaware. Liquidmetal
Delaware covenants 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
General Corporation Law; (b) file any and all documents with the California
Franchise Tax Board necessary for the assumption by Liquidmetal Delaware of all
of the franchise tax liabilities of Liquidmetal California; and (c) take such
other actions as may be required by the California General Corporation Law.
4.2. Further Assurances. From time to time, as and when
required by Liquidmetal Delaware or by its successors or assigns, there shall be
executed and delivered on
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behalf of Liquidmetal California such deeds and other instruments, and there
shall be taken or caused to be taken by Liquidmetal Delaware and Liquidmetal
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 Liquidmetal
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Liquidmetal
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of Liquidmetal Delaware are fully authorized in the name
and on behalf of Liquidmetal California or otherwise to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
4.3. 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 Liquidmetal California
or of Liquidmetal Delaware, or of both, notwithstanding the approval of this
Agreement by the shareholders of Liquidmetal California or by the sole
stockholder of Liquidmetal Delaware, or by both.
4.4. Amendment. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement (or certificate in lieu thereof) with the Secretaries of State of the
States of Delaware and California, provided that an amendment made subsequent to
the adoption of this Agreement by the stockholders of either Constituent
Corporation shall not: (i) 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; (ii) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger; or
(iii) 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. Agreement. Executed copies of this Agreement will be
on file at the principal place of business of the Surviving Corporation at 100
North Tampa Street, Suite 3150, Tampa, Florida 33602.
4.6. 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, so far as applicable, the merger provisions
of the California General Corporation Law.
4.7. Counterparts. This, this Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which,
together, shall constitute the same instrument.
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IN WITNESS WHEREOF, the parties hereto executed this Agreement
as of the day and year first written above.
LIQUIDMETAL TECHNOLOGIES,
a California corporation
By: /s/ John Kang
-----------------
President and Chief Executive Officer
LIQUIDMETAL TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ John Kang
-----------------
President and Chief Executive Officer
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