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EXHIBIT 3.3
AGREEMENT AND PLAN OF MERGER
OF
INFINITY FINANCIAL TECHNOLOGY-DELAWARE, INC.,
A DELAWARE CORPORATION,
AND
INFINITY FINANCIAL TECHNOLOGY, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is dated as of
August ___, 1996, by and between Infinity Financial Technology, a California
corporation ("Infinity California"), and Infinity Financial Technology-Delaware,
Inc., a Delaware corporation ("Infinity Delaware"), which is a wholly-owned
subsidiary of Infinity California. Infinity Delaware and Infinity California are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. Infinity California is a corporation duly organized, validly
existing and in good standing under the laws of the State of California and has
an authorized capital of Thirty Million (30,000,000) shares, consisting of (i)
Twenty-Five Million (25,000,000) shares of Common Stock with a par value of
one-tenth of one cent ($.001) per share, and (ii) Five Million (5,000,000)
shares of Preferred Stock with a par value of one-tenth of one cent ($.001) per
share, of which Five Hundred Thousand (500,000) shares have been designated
Series A Preferred Stock, Seven Hundred Thousand (700,000) have been designated
Series B Preferred Stock, and One Million Forty-One Thousand Six Hundred Sixty
Seven (1,041,667) have been designated Series C Preferred Stock. As of July 3,
1996, 6,356,912 shares of Common Stock, options to purchase an aggregate of
1,553,769 shares of Common Stock, 500,000 shares of Series A Preferred Stock, no
shares of Series B Preferred Stock, and 1,041,667 of Series C Preferred Stock
were issued and outstanding.
B. Infinity Delaware is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has an
authorized capital of Twenty-Five Million (25,000,000) shares of Common Stock
with a par value of one-tenth of one cent ($.001) per share, and (ii) Six
Million Five Hundred Forty-One Thousand Six Hundred Sixty Seven (6,541,667)
shares of Preferred Stock with a par value of one-tenth of one cent ($.001) per
share, of which Five Hundred Thousand (500,000) shares have been designated
Series A Preferred Stock, and One Million Forty-One Thousand Six Hundred Sixty
Seven (1,041,667) have been
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designated Series C Preferred Stock. As of July 3, 1996, 10,000 shares of Common
Stock and no shares of Preferred Stock were issued and outstanding. Upon the
Effective Date of the Merger, as hereinafter defined, each of said 10,000
currently outstanding shares of Common Stock shall be canceled and returned to
the status of authorized but unissued shares.
C. The Board of Directors of Infinity California has determined that,
for the purpose of effectuating the reincorporation of Infinity California in
the State of Delaware, it is advisable and in the best interests of Infinity
California that Infinity California merge with and into Infinity Delaware upon
the terms and conditions herein provided.
D. The respective Boards of Directors of Infinity Delaware and Infinity
California have approved this Agreement, and the Boards of Directors of Infinity
Delaware and Infinity California have directed that this Agreement be submitted
for approval by written consent of their respective stockholders and that it be
executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Infinity Delaware and Infinity California hereby agree,
subject to the terms and conditions hereinafter set forth, as follows:
1. EFFECTUATION OF MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California Corporations Code, Infinity
California shall be merged with and into Infinity Delaware (the "Merger"), and
the separate existence of Infinity California shall cease. Infinity Delaware
shall be, and is herein sometimes referred to as, the "Surviving Corporation"
and the name of the Surviving Corporation shall be Infinity Financial
Technology, Inc.
1.2 Filing and Other Requirements for Effectiveness. The Merger shall
become effective when the following actions shall have been completed:
(a) This Agreement and the 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;
(b) 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;
(c) An executed Certificate of Ownership or an executed
counterpart of this Agreement shall have been filed with the Secretary of State
of the State of Delaware; and
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(d) An executed Certificate of Ownership or an executed
counterpart of this Agreement meeting the requirements of the California
Corporations Code 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 Merger."
1.3 Succession. Upon the Effective Date of Merger, the separate
existence of Infinity California shall cease and Infinity Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
privileges, franchises, powers and property as constituted immediately prior to
the Effective Date of Merger, shall be subject to all actions previously taken
by Infinity California's Board of Directors and shall succeed, without other
transfer, to all of the assets, rights, privileges, franchises, powers and
property of Infinity California in the manner of and as more fully set forth in
Section 259 of the Delaware General Corporation Law, and (ii) shall continue to
be subject to all of its debts, liabilities and obligations as constituted
immediately prior to the Effective Date of Merger and shall succeed, without
other transfer, to all of the debts, liabilities and obligations of Infinity
California in the same manner as if Infinity Delaware had itself incurred them,
all as more fully provided under the applicable provisions of the Delaware
General Corporation Law and the California Corporations Code.
2. MANNER OF CONVERSION OF STOCK
2.1 Infinity California Common Stock and Preferred Stock. Upon the
Effective Date of Merger, each share of Infinity California Common Stock, $.001
par value, issued and outstanding immediately prior thereto shall, by virtue of
the Merger and without any further action by the Constituent Corporations, their
stockholders, or any other person, be converted into and exchanged for one (1)
fully paid and nonassessable share of Common Stock, one-tenth of one cent
($.001) par value per share, of the Surviving Corporation. Upon the Effective
Date of Merger, each share of Infinity California Series A Preferred Stock and
Series C Preferred Stock, $.001 par value, issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any further action by
the Constituent Corporations, their stockholders, or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
Series A Preferred Stock or Series C Preferred Stock, as applicable, one-tenth
of one cent ($.001) par value per share, of the Surviving Corporation. No
fractional share shall be issued upon the exchange of any share or shares of
Common Stock or Preferred Stock of Infinity California for Common Stock or
Preferred Stock of Infinity Delaware.
2.2 Options, Warrants, and Stock Purchase Rights (collectively,
"Derivative Securities"). Upon the Effective Date of Merger, the Surviving
Corporation shall assume and continue the stock option plans and all other
employee benefit, profit sharing and incentive compensation plans of Infinity
California. Each outstanding and unexercised Derivative Security of Infinity
California shall become a Derivative Security of the Surviving Corporation on
the basis of one (1) share of the Surviving Corporation's Common Stock for each
share of Infinity California Common Stock issuable pursuant to any such
Derivative Security, on the same terms
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and conditions applicable to any such Infinity California Derivative Security at
the Effective Date of Merger. The exercise price for each share of Infinity
Delaware Common Stock issuable pursuant to any such Derivative Security shall be
equal to the exercise price applicable to any such Infinity California
Derivative Security at the Effective Date of the Merger. No fractional
Derivative Security shall be issued upon the exchange of any Derivative Security
of Infinity California for a Derivative Security of Infinity Delaware.
A number of shares of the Surviving Corporation's Common Stock
shall be reserved for issuance upon the exercise of Derivative Securities equal
to the number of shares of Infinity California Common Stock so reserved
immediately prior to the Effective Date of Merger.
2.3 Infinity Delaware Capital Stock. Upon the Effective Date of Merger,
each share of Common Stock, with a par value of one-tenth of one cent ($.001)
per share, of Infinity Delaware issued and outstanding immediately prior thereto
shall, by virtue of the Merger and without any action by the holder of such
shares or any other person, be canceled and returned to the status of authorized
but unissued shares.
2.4 Exchange of Certificates. After the Effective Date of Merger, each
holder of an outstanding certificate representing capital stock of Infinity
California may, at such shareholder's option, surrender the same for
cancellation to the Secretary of Infinity Delaware, as exchange agent (the
"Exchange Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the same number of shares of
the Surviving Corporation's capital stock into which the surrendered shares were
converted as herein provided. Until so surrendered, each outstanding certificate
theretofore representing shares of Infinity California capital stock shall be
deemed for all purposes to evidence ownership of and to represent the number of
shares of the Surviving Corporation's capital stock into which such shares of
Infinity California capital stock were converted in the Merger.
The registered owner on the books and records of 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
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 the Surviving Corporation represented by such outstanding certificate as
provided above.
Each certificate representing capital 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 Infinity
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, and any additional legends required by applicable Blue Sky
laws.
If any certificate for shares of Infinity 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
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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 Infinity Delaware that such tax has been paid or is not
payable.
3. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
3.1 Certificate of Incorporation. Except as provided below, the
Certificate of Incorporation of Infinity Delaware as in effect immediately prior
to the Effective Date of Merger shall 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. Upon the Effective
Date of Merger, the Certificate of Incorporation of Infinity Delaware shall be
as follows:
Article thereof number "I" shall be amended to read in its entirety as
follows:
"The name of the Corporation is Infinity Financial Technology,
Inc. (hereinafter called the "Corporation")."
3.2 Bylaws. The Bylaws of Infinity Delaware as in effect immediately
prior to the Effective Date of 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, except that Section 1 of Article III
of the Bylaws shall provide that the number of directors which shall constitute
the whole of the Board of Directors shall be six (6).
3.3 Directors and Officers. The directors and officers of Infinity
California immediately prior to the Effective Date of Merger shall be the
directors and officers of the Surviving Corporation until their successors shall
have been duly elected and qualified or until otherwise as provided by law, the
Certificate of Incorporation of the Surviving Corporation or its Bylaws.
4. MISCELLANEOUS
4.1 Covenants of Infinity Delaware. Infinity Delaware covenants and
agrees that it will, on or before the Effective Date of Merger:
(a) Qualify to do business as a foreign corporation in the State
of California in connection therewith irrevocably appoint an agent for service
of process as required under the provisions of Section 2105 of the California
Corporations Code;
(b) File any and all documents with the California Franchise Tax
Board necessary for the assumption by Infinity Delaware of all of the franchise
tax liabilities of Infinity California; and
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(c) Take such other actions as may be required by the California
Corporations Code or the California Corporate Securities Law of 1968.
4.2 Further Assurances. From time to time, as and when required by
Infinity Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Infinity 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 or perfect in or conform
of record or otherwise by Infinity Delaware the title to and possession of all
the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of Infinity California and otherwise to carry out the
purposes of this Agreement, and the officers and directors of Infinity Delaware
are fully authorized in the name and on behalf of Infinity 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 Merger, this
Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Infinity California or Infinity
Delaware, or both, notwithstanding the approval of this Agreement by the
shareholders of Infinity California.
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 Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of the
Agreement by the stockholders of either Constituent Corporation shall not (1)
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 of such Constituent Corporation, (2) alter or
change any term of the Certificate of Incorporation of the Surviving Corporation
to be effected by the Merger, or (3) 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 thereof of such Constituent
Corporation.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at 1013 Centre Road, in the City
of Wilmington, 19805, County of New Castle; and The Prentice-Hall Corporation
System, Inc. is the registered agent of the Surviving Corporation at such
address.
4.6 Agreement. Executed copies of this Agreement shall be on file at
the principal place of business of the Surviving Corporation at 640 Clyde Court,
Mountain View, California 94043, and copies thereof shall be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
4.7 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.
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4.8 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.
4.9 Approval of Infinity California as Sole Stockholder of Infinity
Delaware. By its execution and delivery of this Agreement, Infinity California,
as sole stockholder of Infinity Delaware, consents to, approves and adopts this
Agreement and the Plan of Merger, a copy of which is attached hereto as Exhibit
A, and approves the Merger. Infinity California agrees to execute such
instruments as may be necessary or desirable to evidence its approval and
adoption of this Agreement, the Plan of Merger and the Merger as the sole
stockholder of Infinity Delaware.
4.10 Expenses. The Surviving Corporation shall pay all expenses of
carrying this Agreement into effect and accomplishing the merger.
4.11 Effective Date. This Agreement and Plan of Merger shall be
effective as of the date of filing of a counterpart of this Agreement or a
Certificate of Ownership with the State of Delaware.
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IN WITNESS WHEREOF, this Agreement, having first been
approved by resolution of the Boards of Directors of Infinity Delaware and
Infinity California, is hereby executed as of the date and year first written
above on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
INFINITY FINANCIAL TECHNOLOGY, INC.,
a California corporation
By: ___________________________
Roger Lang, President
ATTEST:
By: ___________________________
Michael C. Phillips, Secretary
INFINITY FINANCIAL TECHNOLOGY-DELAWARE, INC.,
a Delaware corporation
By: ___________________________
Terry Carlitz, President, Treasurer
and Secretary
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EXHIBIT A
PLAN OF MERGER
The following corporations are parties to this Plan of Merger:
(i) Infinity Financial Technology, Inc., a California corporation ("Infinity
California"); and (ii) Infinity Financial Technology-Delaware, Inc., a Delaware
corporation ("Infinity Delaware").
1. Infinity California owns all of the outstanding shares of Infinity
Delaware.
2. Infinity California shall be merged with and into Infinity Delaware.
3. All of the shares of Infinity Delaware outstanding immediately prior
to the merger shall thereupon be canceled.
4. Upon the Merger, each outstanding share of Infinity California
Common Stock shall be converted to one (1) share of Infinity Delaware Common
Stock; each outstanding share of Infinity California Series A Preferred Stock
shall be converted to one (1) share of Infinity Delaware Series A Preferred
Stock; and each outstanding share of Infinity California Series C Preferred
Stock shall be converted to one (1) share of Infinity Delaware Series C
Preferred Stock.
5. Each holder of shares of Infinity California may thereupon surrender
the share certificate or certificates to the Secretary of Infinity Delaware and
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares into which the shares theretofore represented
by a certificate or certificates so surrendered shall have been converted.
6. Upon the Merger, each outstanding and unexercised option, warrant,
or other right to purchase Infinity California Common Stock shall become an
option, warrant, or other right to purchase Infinity Delaware stock on the basis
of one (1) share of Infinity Delaware Common Stock for each share of Infinity
California Common Stock issuable pursuant to any such option, warrant, or other
stock purchase right, on the same terms and conditions applicable to any such
Infinity California option, warrant, or other stock purchase right.
7. The officers and directors of Infinity California immediately
preceding the Merger shall be the officers and directors of Infinity Delaware
immediately following the Merger.
8. The name of the surviving corporation shall be Infinity Financial
Technology, Inc.
9. This Plan of Merger shall be effective as of the date of filing of a
counterpart of this Agreement or a Certificate of Ownership with the State of
Delaware.