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EXHIBIT 2.8
AGREEMENT AND PLAN OF MERGER
OF ADAPTEC INC.,
A DELAWARE CORPORATION,
AND
ADAPTEC INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of February 23, 1998 (the
"Agreement") is between Adaptec, Inc. a Delaware corporation ("Adaptec
Delaware"), and Adaptec Inc., a California corporation ("Adaptec California").
Adaptec Delaware and Adaptec California are sometimes referred to herein as the
"Constituent Corporations."
RECITALS
A. Adaptec Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 401,000,000
shares, $0.001 par value, of which 400,000,000 shares are designated "Common
Stock" and 1,000,000 shares are designated "Preferred Stock" of which
Two-Hundred Fifty Thousand (250,000) shares are designated as Series A
Participating Preferred. As of February 23, 1998, 100 shares of Common Stock
were issued and outstanding, all of which are held by Adaptec California, and no
shares of Preferred Stock were issued and outstanding.
B. Adaptec California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 401,000,000
shares, $0.001 par value, of which 400,000,000 are designated "Common Stock" and
1,000,000 shares are designated "Preferred Stock" of which Two-Hundred Fifty
Thousand (250,000) are designated as Series A Participating Preferred Stock. As
of February 23, 1998, 113, 737,361 shares of Common Stock were issued and
outstanding, and no shares of Preferred Stock were issued and outstanding.
C. The Board of Directors of Adaptec California has determined that, for
the purpose of effecting the reincorporation of Adaptec California in the State
of Delaware, it is advisable and in the best interests of Adaptec California and
its shareholders that Adaptec California merge with and into Adaptec Delaware
upon the terms and conditions herein provided.
D. The respective Boards of Directors of Adaptec Delaware and Adaptec
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective shareholders and executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Adaptec Delaware and Adaptec California hereby agree, subject
to the terms and conditions hereinafter set forth, as follows:
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MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
Adaptec California shall be merged with and into Adaptec Delaware (the
"Merger"), the separate existence of Adaptec California shall cease and Adaptec
Delaware shall survive the Merger and shall continue to be governed by the laws
of the State of Delaware, and Adaptec Delaware shall be, and is herein sometimes
referred to as, the "Surviving Corporation," and the name of the Surviving
Corporation shall be Adaptec, Inc.
1.2 Filing and 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 shareholders of each Constituent Corporation in
accordance with the requirements of the Delaware General Corporation Law
and the California General Corporation Law;
(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 and acknowledged 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
(d) 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 Adaptec California shall cease and Adaptec 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 Adaptec California's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Adaptec
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 Adaptec California in the same manner as
if Adaptec 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.
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CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
Adaptec Delaware as in effect immediately prior to the Effective Date of the
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.
2.2 Bylaws. The Bylaws of Adaptec 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 Adaptec
California immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their respective
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.
III
MANNER OF CONVERSION OF STOCK
3.1 Adaptec California Common Stock. Upon the Effective Date of the
Merger, each share of Adaptec California Common Stock, par value $.001, 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 changed and converted into and exchanged for one fully paid
and nonassessable share of Common Stock, $.001 par value, of the Surviving
Corporation. Each Purchase Right issued or issuable pursuant to the Second
Amended and Restated Rights Agreement (the "Rights Agreement") dated as of
December 5, 1996 between Adaptec, Inc. and Chase Mellon Shareholder Services,
LLC shall become exercisable, when and as described in the Rights Agreement, for
Adaptec Delaware Series A Participating Preferred Stock. Each share of Adaptec
Delaware Common Stock issued pursuant to this Agreement shall have one such
Purchase Right associated with it.
3.2 Adaptec California Options, Stock Purchase Rights and Convertible
Securities. Upon the Effective Date of the Merger, the Surviving Corporation
shall assume and continue any stock option plans and all other employee benefit
plans of Adaptec California. As of the date hereof, there are options
outstanding under Adaptec California's stock option plans to purchase a total of
18,008,523 shares of Common Stock of Adaptec California. As of the date hereof,
there are outstanding convertible notes in aggregate principal amount of
$230,000,000 convertible into Common Stock of Adaptec California and rights to
purchase Common Stock of Adaptec California issued pursuant to Adaptec
California's Employee Stock Purchase Plan. Each outstanding and unexercised
option or other right to purchase Adaptec California Common Stock or security
convertible into Adaptec California Common Stock shall become an outstanding and
unexercised option or right to purchase the Surviving Corporation's Common
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Stock or a security convertible into the Surviving Corporation's Common Stock on
the basis of one share of the Surviving Corporation's Common Stock for each
share of Adaptec California Common Stock issuable pursuant to any such option,
stock purchase right or convertible security, on the same terms and conditions
and at an exercise price per share equal to the exercise price applicable to any
such Adaptec California option, stock purchase right or convertible security at
the Effective Date of the Merger.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, stock purchase rights or
convertible securities equal to the number of shares of Adaptec California
Common Stock so reserved immediately prior to the Effective Date of the Merger.
3.3 Adaptec Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, $0.001 par value, of Adaptec Delaware issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by Adaptec Delaware, the holder of such shares or any other
person, be canceled and returned to the status of authorized but unissued
shares.
3.4 Certificates. After the Effective Date of the Merger, each
outstanding certificate theretofore representing shares of Adaptec California
Common Stock shall be deemed for all purposes to represent the same number of
whole shares of the Surviving Corporation's Common Stock.
IV
GENERAL
4.1 Covenants of Adaptec Delaware. Adaptec 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 Adaptec Delaware of all of the
franchise tax liabilities of Adaptec 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
Adaptec Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Adaptec California such deeds and other instruments, and
there shall be taken or caused to be taken by Adaptec Delaware and Adaptec
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 Adaptec
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Adaptec
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of
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Adaptec Delaware are fully authorized in the name and on behalf of Adaptec
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 filing of this Agreement with
the Secretary of State of the State of Delaware, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either Adaptec California or Adaptec Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of Adaptec
California or by the sole stockholder of Adaptec 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 with
the Secretaries of State of the States of California and Delaware, provided that
an amendment made subsequent to the adoption of this Agreement by the
shareholders 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 thereof 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, (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 of shares or series thereof of such Constituent Corporation, or (4)
alter or change any of the principal terms of this Agreement.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at Corporation Trust Center,
1209 Orange Center, in the city of Wilmington, County of New Castle, 19801 and
The Corporation Trust Company is the registered agent of the Surviving
Corporation at such address.
4.6 Expenses. Each party to the transactions contemplated by this
Agreement shall pay its own expenses, if any, incurred in connection with such
transactions.
4.7 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 500 Yosemite Drive,
Milpitas, California 95035 and copies thereof will be furnished to any
shareholder of either Constituent Corporation, upon request and without cost.
4.8 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.
4.9 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 Adaptec Delaware and Adaptec
California, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
ADAPTEC, INC.
a Delaware corporation
By:
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F. Grant Saviers
President and Chief Executive
Officer
ATTEST:
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Henry P. Massey, Jr.
Secretary
ADAPTEC, INC.
a California corporation
By:
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F. Grant Saviers
President and Chief Executive
Officer
ATTEST:
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Henry P. Massey, Jr.
Secretary
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ADAPTEC, INC.
(California Corporation)
OFFICERS' CERTIFICATE
F. Grant Saviers and Henry P. Massey, Jr. certify that:
1. They are the President and the Secretary, respectively, of Adaptec,
Inc., a corporation organized under the laws of the State of California.
2. The corporation has authorized two classes of stock, designated
"Common Stock" and "Preferred Stock". There are authorized 400,000,000 shares of
Common Stock and 1,000,000 shares of Preferred Stock.
3. There were 112,308,577 shares of Common Stock, and no shares of
Preferred Stock, outstanding as of the record date (the "Record Date") of the
shareholders' meeting at which the Agreement and Plan of Merger attached hereto
(the "Merger Agreement") was approved. All shares of Common stock outstanding on
the Record Date were entitled to vote on the merger.
4. The principal terms of the Merger Agreement were approved by the
Board of Directors and by the vote of a number of shares of each class of stock
which equaled or exceeded the vote required.
5. The vote required was a majority of the outstanding shares of Common
Stock.
6. F. Grant Saviers and Henry P. Massey, Jr. further declare under
penalty of perjury under the laws of the State of California that each has read
the foregoing certificate and knows the contents thereof and that the same is
true of their own knowledge.
Executed in Milpitas, California on February 23, 1998.
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F. Grant Saviers, President
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Henry P. Massey, Jr., Secretary
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ADAPTEC, INC.
(Surviving Corporation)
OFFICERS' CERTIFICATE
F. Grant Saviers and Henry P. Massey, Jr. certify that:
1. They are the President and the Secretary, respectively, of Adaptec,
Inc., a corporation organized under the laws of the State of Delaware.
2. The corporation has authorized two classes of stock, designated
"Common Stock" and "Preferred Stock". There are authorized 400,000,000 shares of
Common Stock and 1,000,000 shares of Preferred Stock.
3. There were 100 shares of Common Stock outstanding and entitled to
vote on the Agreement and Plan of Merger attached hereto (the "Merger
Agreement"). There were no shares of Preferred Stock outstanding.
4. The principal terms of the Merger Agreement were approved by the
Board of Directors and by the vote of a number of shares of each class and
series of stock which equaled or exceeded the vote required.
5. The vote required was a majority of the outstanding shares of Common
Stock.
6. F. Grant Saviers and Henry P. Massey, Jr. , further declare under
penalty of perjury under the laws of the State of Delaware that each has read
the foregoing certificate and knows the contents thereof and that the same is
true of their own knowledge.
Executed in Milpitas, California on February 23, 1998.
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F. Grant Saviers, President
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Henry P. Massey, Jr., Secretary