UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
October 2, 2015
GOOGLE INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36380 | 77-0493581 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1600 Amphitheatre Parkway
Mountain View, CA 94043
(Address of principal executive offices, including zip code)
(650) 253-0000
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Explanatory Note
On August 10, 2015, Google Inc. (“Google”) announced plans to create a new public holding company, Alphabet Inc. (“Alphabet”), by implementing a holding company reorganization (the “Alphabet Merger”). Following the Alphabet Merger, Alphabet, a Delaware corporation, became the successor issuer to Google, a Delaware corporation.
| Item 1.01. | Entry into a Material Definitive Agreement. |
Adoption of Agreement and Plan of Merger and Consummation of Holding Company Reorganization
On October 2, 2015, Google implemented the Alphabet Merger pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of October 2, 2015, among Google, Alphabet and Maple Technologies Inc., a Delaware corporation (“Merger Sub”), which resulted in Alphabet owning all of the outstanding capital stock of Google. Pursuant to the Alphabet Merger, Merger Sub, a direct, wholly owned subsidiary of Alphabet and an indirect, wholly owned subsidiary of Google, merged with and into Google, with Google surviving as a direct, wholly owned subsidiary of Alphabet. Each share of each class of Google stock issued and outstanding immediately prior to the Alphabet Merger automatically converted into an equivalent corresponding share of Alphabet stock, having the same designations, rights, powers and preferences and the qualifications, limitations and restrictions as the corresponding share of Google stock being converted. Accordingly, upon consummation of the Alphabet Merger, Google’s stockholders immediately prior to the consummation of the Alphabet Merger became stockholders of Alphabet. The stockholders of Google will not recognize gain or loss for U.S. federal income tax purposes upon the conversion of their shares in the Alphabet Merger.
The Alphabet Merger was conducted pursuant to Section 251(g) of the General Corporation Law of the State of Delaware (the “DGCL”), which provides for the formation of a holding company without a vote of the stockholders of the constituent corporation. The conversion of stock occurred automatically without an exchange of stock certificates. After the Alphabet Merger, unless exchanged, stock certificates that previously represented shares of a class of Google stock now represent the same number of shares of the corresponding class of Alphabet stock. Following the consummation of the Alphabet Merger, shares of Alphabet Class C Capital Stock and shares of Alphabet Class A Common Stock continue to trade on the NASDAQ Global Select Market (“NASDAQ”) on an uninterrupted basis under the symbol “GOOG” and “GOOGL” respectively and with new CUSIP numbers (#02079K 107 for Alphabet shares of Class C Capital stock and #02079K 305 for Alphabet shares of Class A Common Stock).
The foregoing descriptions of the Alphabet Merger and the Merger Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 and which is incorporated by reference herein.
| Item 3.01. | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
In connection with the Alphabet Merger, Google notified NASDAQ that the Alphabet Merger had been completed and requested that trading of its shares of Class A Common Stock and shares of Class C Capital Stock (together, the “Google shares”) be suspended prior to the market opening on October 5, 2015. On October 2, 2015, NASDAQ is expected to suspend trading of the Google shares after the close of business. On October 5, 2015, Alphabet shares of Class A Common Stock and shares of Class C Capital Stock are expected to commence trading on NASDAQ under the symbols “GOOGL” and “GOOG” respectively. In addition, NASDAQ filed with the U.S. Securities and Exchange Commission (the “Commission”) an application on Form 25 to delist the Google shares from NASDAQ and deregister the Google shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Google intends to file a certificate on Form 15
after the year ending December 31, 2015 requesting that Google shares be deregistered under the Exchange Act, and that Google’s reporting obligations under Section 15(d) of the Exchange Act be suspended (except to the extent of the succession of Alphabet to the Exchange Act Section 12(b) registration and reporting obligations of Google). Until Google’s reporting obligations are suspended, investors can find reports and other documents that Google files with the Securities Exchange Commission on investor.google.com.
| Item 3.03. | Material Modification of Rights of Securityholders. |
Upon consummation of the Alphabet Merger, each share of each class of Google stock issued and outstanding immediately prior to the Alphabet Merger automatically converted into an equivalent corresponding share of Alphabet stock, having the same designations, rights, powers and preferences and the qualifications, limitations and restrictions as the corresponding share of Google stock that was converted.
The information set forth in Item 1.01 and Item 5.03 is hereby incorporated by reference in this Item 3.03.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
In connection with the Alphabet Merger, on October 2, 2015, Google also entered into the Compensation Plan Agreement with Alphabet pursuant to which Alphabet assumed (including sponsorship of) the Google Inc. 2004 Stock Plan, the Google Inc. 2012 Stock Plan, the AdMob Inc. 2006 Stock Plan and UK Sub-Plan of the AdMob Inc. 2006 SubPlan, the Click Holding Corp. 2005 Stock Incentive Plan, and any subplans, appendices or addendums thereunder (together, the “Google Equity Compensation Plans”), and all obligations of Google pursuant to each stock option to purchase a share of Google stock (a “Google Option”) and each right to acquire or vest in a share of Google stock (a “Google Stock Unit” and each of a Google Option and a Google Stock Unit, a “Google Equity Award”) that is outstanding immediately prior to October 2, 2015 and (i) issued under the Google Equity Compensation Plans and underlying grant agreements (each such grant agreement, a “Google Equity Award Grant Agreement” and such grant agreements together with the Google Equity Compensation Plans, the “Google Equity Compensation Plans and Agreements”) or (ii) granted by Google outside of the Google Equity Compensation Plans and Agreements pursuant to NASDAQ Listing Rule 5635(c), and (B) each such Google Equity Award was converted into (A) with respect to each Google Stock Unit, a right to acquire or vest in an Alphabet share or (B) with respect to a Google Option, an option to purchase an Alphabet share at an exercise price per share equal to the exercise price per share of Google stock subject to such Google Option immediately prior to October 2, 2015. On October 2, 2015, the Google Equity Awards, the Google Equity Compensation Plans and Agreements and any provision of any other compensatory plan, agreement or arrangement providing for the grant or issuance of shares of Google stock was automatically deemed to be amended (and, in the case of the Google Inc. 2012 Stock Plan, formally amended), to the extent necessary or appropriate, to provide that references to Google in such awards, documents and provisions will be read to refer to Alphabet and references to shares of Google stock in such awards, documents and provisions will be read to refer to Alphabet shares.
Furthermore, on October 2, 2015, Google entered into the Director Arrangements Agreement pursuant to which Alphabet assumed any and all obligations to the individual signatories under the offer letters with certain of the current members of Google’s Board of Directors from and after October 2, 2015 in accordance with the terms of the offer letters as if Alphabet, and not Google, were the signatory thereto and all references to Google therein were replaced with references to Alphabet.
The foregoing descriptions of the Compensation Plan Agreement and the Director Arrangements Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Compensation Plan Agreement and the Director Arrangements Agreement, which are filed as Exhibits 10.1 and 10.2, respectively, and each of which is incorporated by reference herein.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On October 2, 2015, the Fourth Amended and Restated Certificate of Incorporation of Google (the “Google Charter”) was amended pursuant to the Alphabet Merger to decrease the authorized number of shares of Class A Common Stock, par value $0.001 per share, from nine billion (9,000,000,000) shares to five hundred (500) shares, the authorized number of shares of Class B Common Stock, par value $0.001 per share, from three billion (3,000,000,000) shares to five hundred (500) shares, the authorized number of shares of Class C Capital Stock, par value $0.001 per share, from three billion (3,000,000,000) shares to five hundred (500) shares and the authorized number of shares of Preferred Stock, par value $0.001 per share, from one hundred million (100,000,000) shares to five hundred (500) shares.
In addition, the Google Charter was amended pursuant to the Alphabet Merger to add a provision, which is required by Section 251(g) of the DGCL, that provides that any act or transaction by or involving Google, other than the election or removal of directors, that requires for its adoption under the DGCL or the Google Charter the approval of the stockholders of Google shall require the approval of the stockholders of Alphabet by the same vote as is required by the DGCL and/or the Google Charter.
The foregoing descriptions of the amendments to the Google Charter do not purport to be complete and are qualified in their entirety by reference to the full text of the Certificate of Merger, which is filed as Exhibit 3.1, and is incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit No. | Description | |
| 2.1 | Agreement and Plan of Merger, dated October 2, 2015, by and among Google Inc., Alphabet Inc. and Maple Technologies Inc. | |
| 3.1 | Certificate of Merger, dated October 2, 2015 | |
| 10.1 | Compensation Plan Agreement, dated October 2, 2015 between Google Inc. and Alphabet Inc. | |
| 10.2 | Director Arrangements Agreement, dated October 2, 2015 between Google Inc. and Alphabet Inc. | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| GOOGLE INC. | ||||||||
| Date: October 2, 2015 | /s/ Kent Walker | |||||||
| Kent Walker | ||||||||
| Senior Vice President and General Counsel | ||||||||
INDEX TO EXHIBITS
| Exhibit No. | Description | |
| 2.1 | Agreement and Plan of Merger, dated October 2, 2015, by and among Google Inc., Alphabet Inc. and Maple Technologies Inc. | |
| 3.1 | Certificate of Merger, dated October 2, 2015 | |
| 10.1 | Compensation Plan Agreement, dated October 2, 2015 between Google Inc. and Alphabet Inc. | |
| 10.2 | Director Arrangements Agreement, dated October 2, 2015 between Google Inc. and Alphabet Inc. | |
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the “Agreement”), entered into as of October 2, 2015, by and among Google Inc., a Delaware corporation (the “Company”), Alphabet Inc., a Delaware corporation (“Holdco”) and a direct, wholly owned subsidiary of the Company, and Maple Technologies Inc., a Delaware corporation (“Merger Sub”) and a direct, wholly owned subsidiary of Holdco.
RECITALS
WHEREAS, on the date hereof, the Company has the authority to issue 15,100,000,000 shares, consisting of: (i) 9,000,000,000 shares of Class A Common Stock, par value $0.001 per share (the “Company Class A Common Stock”), of which 291,261,461 shares are issued and outstanding; (ii) 3,000,000,000 shares of Class B Common Stock, par value $0.001 per share (the “Company Class B Common Stock”), of which 50,940,307 shares are issued and outstanding; (iii) 3,000,000,000 shares of Class C Capital Stock, par value $0.001 per share (the “Company Class C Capital Stock”), of which 345,482,241 shares are issued and outstanding; and (iv) 100,000,000 shares of Preferred Stock, par value $0.001 per share (the “Company Preferred Stock”), of which no shares are issued and outstanding.
WHEREAS, as of the Effective Time (as defined below), Holdco will have the authority to issue 15,100,000,000 shares, consisting of: (i) 9,000,000,000 shares of Class A Common Stock, par value $0.001 per share (the “Holdco Class A Common Stock”); (ii) 3,000,000,000 shares of Class B Common Stock, par value $0.001 per share (the “Holdco Class B Common Stock”); (iii) 3,000,000,000 shares of Class C Capital Stock, par value $0.001 per share (the “Holdco Class C Capital Stock”); and (iv) 100,000,000 shares of Preferred Stock, par value $0.001 per share (the “Holdco Preferred Stock”).
WHEREAS, as of the date hereof, Merger Sub has the authority to issue 1,000 shares of common stock, par value $0.001 per share (the “Merger Sub Common Stock”), of which 100 shares are issued and outstanding on the date hereof and owned by Holdco.
WHEREAS, as of the Effective Time, the designations, rights, powers and preferences, and the qualifications, limitations and restrictions of the Holdco Class A Common Stock, Holdco Class B Common Stock, Holdco Class C Capital Stock and Holdco Preferred Stock will be the same as those of the Company Class A Common Stock, Company Class B Common Stock, Company Class C Capital Stock and Company Preferred Stock, respectively.
WHEREAS, the Amended and Restated Certificate of Incorporation of Holdco (the “Holdco Charter”) and the Bylaws of Holdco (the “Holdco Bylaws”), which will be in effect immediately following the Effective Time, contain provisions identical to the Fourth Amended and Restated Certificate of Incorporation of the Company (the “Company Charter”) and the Amended and Restated Bylaws of the Company (the “Company Bylaws”), in effect as of the date hereof and that will be in effect immediately prior to the Effective Time, respectively (other than as permitted by Section 251(g) of the General Corporation Law of the State of Delaware (the “DGCL”)).
WHEREAS, Holdco and Merger Sub are newly formed corporations organized for the sole purpose of participating in the transactions herein contemplated and actions related thereto, own no assets (other than Holdco’s ownership of Merger Sub and nominal capital) and have taken no actions other than those necessary or advisable to organize the corporations and to effect the transactions herein contemplated and actions related thereto.
WHEREAS, the Company desires to reorganize into a holding company structure pursuant to Section 251(g) of the DGCL, under which Holdco would become a holding company, by the merger of Merger Sub with and into the Company, and with each share of Company Class A Common Stock, Company Class B Common Stock and Company Class C Capital Stock being converted in the Merger (as defined below) into a share of Holdco Class A Common Stock, Holdco Class B Common Stock or Holdco Class C Capital Stock, respectively.
WHEREAS, on or about the date hereof, the Company and Holdco will enter or have entered into a Compensation Plan Agreement, pursuant to which, among other things, the Company will, at the Effective Time, transfer to Holdco, and Holdco will assume, sponsorship of all of the Company’s Equity Plans (as defined below) and all of the Company’s rights and obligations thereunder.
WHEREAS, the boards of directors of Holdco and the Company have approved and declared advisable this Agreement and the transactions contemplated hereby, including, without limitation, the Merger.
WHEREAS, the board of directors of Merger Sub has (i) approved and declared advisable this Agreement and the transactions contemplated hereby, including, without limitation, the Merger, (ii) resolved to submit the approval of the adoption of this Agreement and the transactions contemplated hereby, including, without limitation, the Merger, to its sole stockholder, and (iii) resolved to recommend to its sole stockholder that it approve the adoption of this Agreement and the transactions contemplated hereby, including, without limitation, the Merger.
WHEREAS, the parties intend, for United States federal income tax purposes, the Merger shall qualify as an exchange described in Section 351 of the Internal Revenue Code.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Company, Holdco and Merger Sub hereby agree as follows:
1. THE MERGER. In accordance with Section 251(g) of the DGCL and subject to, and upon the terms and conditions of, this Agreement, Merger Sub shall be merged with and into the Company (the “Merger”), the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger (the “Surviving Corporation”). At the Effective Time, the effects of the Merger shall be as provided in this Agreement and in Section 259 of the DGCL.
2. EFFECTIVE TIME. As soon as practicable on or after the date hereof, the Company shall file a certificate of merger executed in accordance with the relevant provisions of the DGCL, with the Secretary of State of the State of Delaware (the “Secretary of State”) and shall make all other filings or recordings required under the DGCL to effectuate the Merger. The
2
Merger shall become effective at such time as the certificate of merger is duly filed with the Secretary of State or at such later date and time as the parties shall agree and specify in the certificate of merger (the date and time the Merger becomes effective being referred to herein as the “Effective Time”).
3. CERTIFICATE OF INCORPORATION. At the Effective Time, the Company Charter shall be amended in the Merger as set forth below, and as so amended, shall be the certificate of incorporation of the Surviving Corporation (the “Surviving Corporation Charter”) until thereafter amended as provided therein or by the DGCL.
(a) ARTICLE IV, Section 1 of the Company Charter shall be deleted in its entirety and replaced with the following:
Section 1. Authorized Shares. This Corporation is authorized to issue five hundred (500) shares of Class A Common Stock, par value $0.001 per share (the “Class A Common Stock”), five hundred (500) shares of Class B Common Stock, par value $0.001 per share (the “Class B Common Stock”, and together with the Class A Common Stock, the “Common Stock”), five hundred (500) shares of Class C Capital Stock, par value $0.001 per share (the “Class C Capital Stock”), and five hundred (500) shares of Preferred Stock, par value $0.001 per share. The number of authorized shares of any class or classes of stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of at least a majority of the voting power of the issued and outstanding shares of Common Stock of the Corporation, voting together as a single class.
(b) ARTICLE XI of the Company Charter shall be amended by adding a Section 3 immediately following Section 2 to read in its entirety as follows:
Section 3. Any act or transaction by or involving the Corporation, other than the election or removal of directors of the Corporation, that requires for its adoption under the General Corporation Law of the State of Delaware or this Certificate of Incorporation the approval of the stockholders of the Corporation shall, in accordance with Section 251(g) of the General Corporation Law of the State of Delaware, require, in addition, the approval of the stockholders of Alphabet Inc. (or any successor thereto by merger), by the same vote as is required by the General Corporation Law of the State of Delaware and/or this Certificate of Incorporation.
4. BYLAWS. From and after the Effective Time, the Company Bylaws, as in effect immediately prior to the Effective Time, shall constitute the Bylaws of the Surviving Corporation (the “Surviving Corporation Bylaws”) until thereafter amended as provided therein or by applicable law.
5. DIRECTORS. The directors of the Company in office immediately prior to the Effective Time shall be the directors of the Surviving Corporation and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their successors are duly elected or appointed and qualified in the manner provided in the Surviving Corporation Charter and Surviving Corporation Bylaws, or as otherwise provided by law.
3
6. OFFICERS. The officers of the Company in office immediately prior to the Effective Time shall be the officers of the Surviving Corporation and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their successors are duly elected or appointed and qualified in the manner provided in the Surviving Corporation Charter and Surviving Corporation Bylaws, or as otherwise provided by law.
7. ADDITIONAL ACTIONS. If, at any time after the Effective Time, the Surviving Corporation shall consider or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm, of record or otherwise, in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either Merger Sub or the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of each of Merger Sub and the Company, all such deeds, bills of sale, assignments and assurances and to take and do, in the name and on behalf of each of Merger Sub and the Company or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.
8. CONVERSION OF SECURITIES. At the Effective Time, by virtue of the Merger and without any action on the part of Holdco, Merger Sub, the Company or any holder of any securities thereof:
(a) Conversion of Company Class A Common Stock, Company Class B Common Stock and Company Class C Capital Stock. Each share of Company Class A Common Stock, Company Class B Common Stock and Company Class C Capital Stock issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of Holdco Class A Common Stock, Holdco Class B Common Stock and Holdco Class C Capital Stock, respectively.
(b) Conversion of Company Stock Held as Treasury Stock. Each share of Company Class A Common Stock, Company Class B Common Stock and Company Class C Capital Stock held in the Company’s treasury shall be converted into one validly issued, fully paid and nonassessable share of Holdco Class A Common Stock, Holdco Class B Common Stock and Holdco Class C Capital Stock, respectively, to be held immediately after completion of the Merger in the treasury of Holdco.
(c) Conversion of Capital Stock of Merger Sub. Each share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of Class A Common Stock, par value $0.001 per share, one validly issued, fully paid and nonassessable share of Class B Common Stock, par value $0.001 per share, and one validly issued, fully paid and nonassessable share of Class C Capital Stock, par value $0.001 per share, of the Surviving Corporation.
(d) Rights of Certificate Holders. Upon conversion thereof in accordance with this Section 8, all shares of Company Class A Common Stock, Company Class B Common Stock and Company Class C Capital Stock shall no longer be outstanding and shall cease to exist, and each holder of a certificate representing any such shares of Company Class A
4
Common Stock, Company Class B Common Stock or Company Class C Capital Stock shall cease to have any rights with respect to such shares of Company Class A Common Stock, Company Class B Common Stock or Company Class C Capital Stock, respectively, except, in all cases, as set forth in Section 9 herein. In addition, each outstanding book-entry that, immediately prior to the Effective Time, evidenced shares of Company Class A Common Stock, Company Class B Common Stock or Company Class C Capital Stock shall, from and after the Effective Time, be deemed and treated for all corporate purposes to evidence the ownership of the same number of shares of Holdco Class A Common Stock, Holdco Class B Common Stock, or Holdco Class C Capital Stock, respectively.
9. CERTIFICATES. At and after the Effective Time until thereafter surrendered for transfer or exchange in the ordinary course, each outstanding certificate which immediately prior thereto represented shares of Company Class A Common Stock, Company Class B Common Stock or Company Class C Capital Stock shall be deemed for all purposes to evidence ownership of and to represent the shares of Holdco Class A Common Stock, Holdco Class B Common Stock or Holdco Class C Capital Stock, as applicable, into which the shares of Company Class A Common Stock, Company Class B Common Stock or Company Class C Capital Stock represented by such certificate have been converted as herein provided and shall be so registered on the books and records of Holdco and its transfer agent. At and after the Effective Time, the shares of capital stock of Holdco shall be uncertificated; provided, that, any shares of capital stock of Holdco that are represented by outstanding certificates of the Company pursuant to the immediately preceding sentence shall continue to be represented by certificates as provided therein and shall not be uncertificated unless and until a valid certificate representing such shares pursuant to the immediately preceding sentence is delivered to Holdco at its registered office in the State of Delaware, its principal place of business, or an officer or agent of Holdco having custody of books and records of Holdco, at which time such certificate shall be canceled and in lieu of the delivery of a certificate representing the applicable shares of capital stock of Holdco, Holdco shall (i) issue to such holder the applicable uncertificated shares of capital stock of Holdco by registering such shares in Holdco’s books and records as book-entry shares, upon which such shares shall thereafter be uncertificated and (ii) take all action necessary to provide such holder with evidence of the uncertificated book-entry shares, including any action necessary under applicable law in accordance therewith, including in accordance with Sections 151(f) and 202 of the DGCL. If any certificate that prior to the Effective Time represented shares of Company Class A Common Stock, Company Class B Common Stock or Company Class C Capital Stock shall have been lost, stolen or destroyed, then, upon the making of an affidavit of such fact by the person or entity claiming such certificate to be lost, stolen or destroyed and the providing of an indemnity by such person or entity to Holdco, in form and substance reasonably satisfactory to Holdco, against any claim that may be made against it with respect to such certificate, Holdco shall issue to such person or entity, in exchange for such lost, stolen or destroyed certificate, uncertificated shares representing the applicable shares of Holdco Class A Common Stock, Holdco Class B Common Stock or Holdco Class C Capital Stock in accordance with the procedures set forth in the preceding sentence.
10. ASSUMPTION OF EQUITY PLANS AND AWARDS.
At the Effective Time, pursuant to this Merger Agreement and the Compensation Plan Agreement entered into between Holdco and the Company on or about the date hereof (the “Compensation Plan Agreement”), the Company will transfer to Holdco, and Holdco will assume, sponsorship of all of the Company’s Equity Plans (as defined below), along with all of the Company’s rights and obligations under the Equity Plans.
5
At the Effective Time, pursuant to this Merger Agreement and the Compensation Plan Agreement, the Company will transfer to Holdco, and Holdco will assume, its rights and obligations under each stock option to purchase a share of Company capital stock (each, a “Stock Option”) and each right to acquire or vest in a share of Company capital stock (each, a “GSU” and together with the Stock Options, the “Awards”) issued under the Equity Plans or granted by the Company outside of the Equity Plans pursuant to NASDAQ Listing Rule 5635(c) that is outstanding and unexercised, unvested and not yet paid or payable immediately prior to the Effective Time, which Awards shall be converted into a stock option to purchase or a right to acquire or vest in, respectively, a share of Holdco capital stock of the same class and with the same rights and privileges relative to Holdco that such share underlying such Stock Option or GSU had relative to the Company immediately prior to the Effective Time on otherwise the same terms and conditions as were applicable immediately prior to the Effective Time, including, for Stock Options, at an exercise price per share equal to the exercise price per share for the applicable share of Company capital stock. For purposes of this Agreement, “Equity Plans” shall mean, collectively, the Google Inc. 2004 Stock Plan, the Google Inc. 2012 Stock Plan, the AdMob, Inc. 2006 Stock Plan and UK Sub-Plan of the AdMob, Inc. 2006 Stock Plan, Click Holding Corp. 2005 Stock Incentive Plan, and the Motorola Mobility Holdings, Inc. 2011 Incentive Compensation Plan and any and all subplans, appendices or addendums thereto, and any and all agreements evidencing Awards.
11. HOLDCO SHARES. Prior to the Effective Time, the Company and Holdco shall take any and all actions as are necessary to ensure that each share of capital stock of Holdco that is owned by the Company immediately prior to the Effective Time shall be cancelled and cease to be outstanding at the Effective Time, and no payment shall be made therefor, and the Company, by execution of this Agreement, agrees to forfeit such shares and relinquish any rights to such shares.
12. NO APPRAISAL RIGHTS. In accordance with the DGCL, no appraisal rights shall be available to any holder of shares of Company Class A Common Stock, Company Class B Common Stock, or Company Class C Capital Stock in connection with the Merger.
13. TERMINATION. This Agreement may be terminated, and the Merger and the other transactions provided for herein may be abandoned, whether before or after the adoption of this Agreement by the sole stockholder of Merger Sub, at any time prior to the Effective Time, by action of the board of directors of the Company. In the event of termination of this Agreement, this Agreement shall forthwith become void and have no effect, and neither the Company, Holdco, Merger Sub nor their respective stockholders, directors or officers shall have any liability with respect to such termination or abandonment.
14. AMENDMENTS. At any time prior to the Effective Time, this Agreement may be supplemented, amended or modified, whether before or after the adoption of this Agreement by the sole stockholder of Merger Sub, by the mutual consent of the parties to this Agreement by action by their respective boards of directors; provided, however, that, no amendment shall be effected subsequent to the adoption of this Agreement by the sole stockholder of Merger Sub that by law requires further approval or authorization by the sole stockholder of Merger Sub or the stockholders of the Company without such further approval or authorization. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all of the parties hereto.
6
15. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws.
16. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original but all of which shall constitute one and the same agreement.
17. ENTIRE AGREEMENT. This Agreement, including the documents and instruments referred to herein, constitutes the entire agreement and supersedes all other prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.
18. SEVERABILITY. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.
[Signature Page Follows]
7
IN WITNESS WHEREOF, the Company, Holdco and Merger Sub have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| GOOGLE INC. | ||||
| By: | /s/ Kent Walker | |||
| Name: | Kent Walker | |||
| Title: | Assistant Secretary | |||
| ALPHABET INC. | ||||
| By: | /s/ Christine Flores | |||
| Name: | Christine Flores | |||
| Title: | Assistant Secretary | |||
| MAPLE TECHNOLOGIES INC. | ||||
| By: | /s/ Kenneth Yi | |||
| Name: | Kenneth Yi | |||
| Title: | CEO, President and Secretary | |||
Exhibit 3.1
CERTIFICATE OF MERGER
OF
MAPLE TECHNOLOGIES INC.,
WITH AND INTO
GOOGLE INC.
Pursuant to Section 251 of the General Corporation Law of the State of Delaware (“DGCL”), the undersigned corporation hereby certifies that:
FIRST: The name and state of incorporation of each of the constituent corporations to the merger are as follows:
| Name |
State of Incorporation | |
| Google Inc. |
Delaware | |
| Maple Technologies Inc. |
Delaware | |
SECOND: The Agreement and Plan of Merger, dated as of October 2, 2015 (the “Merger Agreement”), by and among Alphabet Inc., Google Inc., and Maple Technologies Inc., has been approved, adopted, executed and acknowledged by each of the constituent corporations in accordance with Sections 251(c) and 251(g) of the DGCL (and, with respect to Maple Technologies Inc., by the written consent of its sole stockholder in accordance with Section 228 of the DGCL).
THIRD: The name of the surviving corporation is Google Inc.
FOURTH: The certificate of incorporation of the surviving corporation is amended in the merger as follows:
(a) ARTICLE IV, Section 1 of the certificate of incorporation of the surviving corporation shall be deleted in its entirety and replaced with the following:
Section 1. Authorized Shares. This Corporation is authorized to issue five hundred (500) shares of Class A Common Stock, par value $0.001 per share (the “Class A Common Stock”), five hundred (500) shares of Class B Common Stock, par value $0.001 per share (the “Class B Common Stock”, and, together with the Class A Common Stock, the “Common Stock”), five hundred (500) shares of Class C Capital Stock, par value $0.001 per share (the “Class C Capital Stock”), and five hundred (500) shares of Preferred Stock, par value $0.001 per share. The number of authorized shares of any class or classes of stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of at least a majority of the voting power of the issued and outstanding shares of Common Stock of the Corporation, voting together as a single class.
(b) ARTICLE XI of the certificate of incorporation of the surviving corporation shall be amended by adding a Section 3 immediately following Section 2 to read in its entirety as follows:
Section 3. Any act or transaction by or involving the Corporation, other than the election or removal of directors of the Corporation, that requires for its adoption under the General Corporation Law of the State of Delaware or this Certificate of Incorporation the approval of the stockholders of the Corporation shall, in accordance with Section 251(g) of the General Corporation Law of the State of Delaware, require, in addition, the approval of the stockholders of Alphabet Inc. (or any successor thereto by merger), by the same vote as is required by the General Corporation Law of the State of Delaware and/or this Certificate of Incorporation.
FIFTH: The executed Merger Agreement is on file at the principal place of business of the surviving corporation at the following address:
1600 Amphitheatre Parkway
Mountain View, CA 94043
SIXTH: A copy of the Merger Agreement will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.
SEVENTH: This Certificate of Merger shall become effective at 4:01 p.m., Eastern Time, on October 2, 2015.
IN WITNESS WHEREOF, this Certificate of Merger has been executed on the second day of October, 2015.
| GOOGLE INC. | ||
| By: | /s/ Kent Walker | |
| Name: | Kent Walker | |
| Title: | Assistant Secretary | |
Exhibit 10.1
COMPENSATION PLAN AGREEMENT
THIS COMPENSATION PLAN AGREEMENT (this “Agreement”) dated as of October 2, 2015 is between Google Inc., a Delaware corporation (“Google”) (which will be the surviving entity following the merger at the Effective Time (as defined herein), in which Maple Technologies Inc., a Delaware corporation (“MergerSub”) will be merged with and into Google) and Alphabet Inc., a Delaware corporation (“Alphabet”). All capitalized terms used in this Agreement and not defined herein have the respective meanings ascribed to them in the Agreement and Plan of Merger, dated as of October 2, 2015 (the “Merger Agreement”), by and among Google, Alphabet and MergerSub.
RECITALS
WHEREAS, pursuant to the Merger Agreement, at the Effective Time, MergerSub will be merged with and into Google, with Google continuing as the surviving entity in such merger and each outstanding share of capital stock of Google (“Google Stock”) will be converted into one share of capital stock of Alphabet (“Alphabet Stock”) of the same class and with the same rights and privileges relative to Alphabet that such share had relative to Google prior to the merger (the “Reorganization”);
WHEREAS, in connection with the Reorganization, (A) Google will transfer (including sponsorship of) to Alphabet, and Alphabet will assume (including sponsorship of), Google’s equity compensation plans listed in Exhibit A and any subplans, appendices or addendums thereto (the “Google Equity Compensation Plans”) and all obligations of Google pursuant to each stock option to purchase a share of Google Stock (a “Google Option”) and each right to acquire or vest in a share of Google Stock (a “Google Stock Unit” and each of a Google Option and a Google Stock Unit, a “Google Equity Award”) that is outstanding immediately prior to the Effective Time and (i) issued under the Google Equity Compensation Plans and underlying grant agreements (each such grant agreement, a “Google Equity Award Grant Agreement” and such grant agreements together with the Google Equity Compensation Plans, the “Google Equity Compensation Plans and Agreements”) or (ii) granted by Google outside of the Google Equity Compensation Plans and Agreements pursuant to NASDAQ Listing Rule 5635(c), all upon the terms and subject to the conditions set forth in the Merger Agreement and this Agreement, and (B) each such Google Equity Award will be converted into (A) with respect to each Google Stock Unit, a right to acquire or vest in a share of Alphabet Stock or (B) with respect to a Google Option, an option to purchase a share of Alphabet Stock at an exercise price per share equal to the exercise price per share of Google Stock subject to such Google Option immediately prior to the Effective Time;
WHEREAS, Google maintains the Google Inc. Deferred Compensation Plan, as amended (the “Deferred Compensation Plan”);
WHEREAS, the Board of Directors of Google has determined that it is in the best interests of Google for Google to enter into this Agreement;
WHEREAS, the Board of Directors of Alphabet has determined that it is in the best interests of Alphabet and its shareholders for Alphabet to enter into this Agreement;
WHEREAS, the Board of Directors of Google and the Board of Directors of Alphabet have determined that the Reorganization does not constitute a “Change in Control” under the Google Equity Compensation Plans and Agreements or the Google Equity Awards, as such term is defined therein.
NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Google and Alphabet hereby agree as follows:
I.
EQUITY PLANS AND AWARDS
1. Subject to and as of the Effective Time, Alphabet will assume and will perform, from and after the Effective Time, all of the obligations of Google pursuant to the Google Equity Compensation Plans and Agreements.
2. Subject to and as of the Effective Time, (a) Alphabet will assume each Google Equity Award that is outstanding and unexercised, unvested and not yet paid or payable immediately prior to the Effective Time (i) issued under the Google Equity Compensation Plans and Agreements or (ii) granted by Google outside of the Google Equity Compensation Plans and Agreements pursuant to NASDAQ Listing Rule 5635(c) and (b) each such Google Equity Award shall be converted into (A) with respect to each Google Stock Unit, a right to acquire or vest in, on otherwise the same terms and conditions as were applicable under the applicable Google Equity Compensation Plan and/or Google Equity Award Grant Agreement (as modified herein), a share of Alphabet Stock with the same rights and privileges applicable to the share of Google Stock subject to such Google Stock Unit immediately prior to the Effective Time and (B) with respect to a Google Option, an option to purchase, on otherwise the same terms and conditions as were applicable under the applicable Google Equity Compensation Plan and/or Google Equity Award Grant Agreement (as modified herein), a share of Alphabet Stock with the same rights and privileges applicable to the share of Google Stock subject to such Google Option immediately prior to the Effective Time, at an exercise price per share equal to the exercise price per share of Google Stock subject to such Google Option immediately prior to the Effective Time. All Google Options shall be adjusted and converted in accordance with the requirements of Section 424 of the United States Internal Revenue Code of 1986, as amended, and regulations thereunder.
3. At the Effective Time, the Google Equity Awards, the Google Equity Compensation Plans and Agreements and any provision of any other compensatory plan, agreement or arrangement providing for the grant or issuance of Google Stock shall each be automatically deemed to be amended, to the extent necessary or appropriate, to provide that references to Google in such awards, documents and provisions shall be read to refer to Alphabet and references to Google Stock in such awards, documents and provisions shall be read to refer to Alphabet Stock. Alphabet and Google agree to (i) prepare and execute all amendments to the Google Equity Compensation Plans and Agreements, Google Equity Awards and other documents necessary to effectuate Alphabet’s assumption of the Google Equity Compensation Plans and Agreements and outstanding Google Equity Awards, (ii) provide notice of the assumption to holders of such Google Equity Awards, and (iii) submit any required filings with the Securities and Exchange Commission in connection with same.
4. On or prior to the Effective Time, Alphabet shall reserve sufficient shares of Alphabet Stock to provide for the issuance of Alphabet Stock to satisfy Alphabet’s obligations under this Agreement with respect to the Google Equity Compensation Plans and Agreements and Google Equity Awards.
5. Google and Alphabet agree that the Reorganization does not constitute a “Change in Control” under the Google Equity Compensation Plans and Agreements or the Google Equity Awards, as such term is defined therein.
II.
DEFERRED COMPENSATION PLAN
1. Subject to and as of the Effective Time, Alphabet will assume and will perform, from and after the Effective Time, all of the obligations of Google pursuant to the Deferred Compensation Plan, noting that no assets of Alphabet shall be held in any way as collateral security for the fulfilling of the obligations of Alphabet, any and all of Alphabet’s assets shall be, and remain, the general unpledged, unrestricted assets of Alphabet, subject to the claims of Alphabet’s general creditors and that Alphabet’s obligation as to the Deferred Compensation Plan shall be merely that of an unfunded and unsecured promise of Alphabet to pay money in the future, and the rights of any participants or beneficiaries of the Deferred Compensation Plan shall be no greater than those of unsecured general creditors of Alphabet.
2. At the Effective Time, the Deferred Compensation Plan shall be automatically deemed to be amended, to the extent necessary or appropriate, to provide that references to Google shall be read to refer to Alphabet. Alphabet and Google agree to prepare and execute all amendments to the Deferred Compensation Plan and other documents necessary to effectuate Alphabet’s assumption of the Deferred Compensation Plan.
2
III.
MISCELLANEOUS
1. Each of Google and Alphabet will, from time to time and at all times hereafter, upon every reasonable request to do so by any other party hereto, make, do, execute and deliver, or cause to be made, done, executed and delivered, all such further acts, deeds, assurances and things as may be reasonably required or necessary in order to further implement and carry out the intent and purpose of this Agreement.
3
IN WITNESS WHEREOF, the undersigned have executed this Compensation Plan Agreement as of the date first written above.
| GOOGLE INC. | ||
| a Delaware corporation | ||
| By: | /s/ Kenneth Yi | |
| Name: Kenneth Yi | ||
| Title: Assistant Secretary | ||
| ALPHABET INC. a Delaware corporation | ||
| By: | /s/ Christine Flores | |
| Name: Christine Flores | ||
| Title: Assistant Secretary | ||
4
Exhibit A
Equity Plans
| • | The Google Inc. 2004 Stock Plan |
| • | The Google Inc. 2012 Stock Plan |
| • | The AdMob, Inc. 2006 Stock Plan and UK Sub-Plan of the AdMob, Inc. 2006 Stock Plan |
| • | Click Holding Corp. 2005 Stock Incentive Plan |
| • | The Motorola Mobility Holdings, Inc. 2011 Incentive Compensation Plan |
5
Exhibit 10.2
DIRECTOR ARRANGEMENTS AGREEMENT
THIS DIRECTOR ARRANGEMENTS AGREEMENT (this “Agreement”) dated as of October 2, 2015 is between Google Inc., a Delaware corporation (“Google”), and Alphabet Inc., a Delaware corporation (“Alphabet”).
RECITALS
WHEREAS, Google has previously entered into offer letters with certain of the current members of Google’s Board of Directors (the “Offer Letters) in respect of such individuals’ service to Google;
WHEREAS, the Board of Directors of Alphabet has determined that it is in the best interests of Alphabet for Alphabet enter into an agreement with Google providing for Alphabet’s performance of obligations under the Offer Letters as if Alphabet, and not Google, were the signatory thereto, from and after the date hereof, with Google having no further obligations under the Offer Letters from and after the date hereof;
WHEREAS, the Board of Directors of Google has determined that it is in the best interests of Google to agree to enter into such an agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Google and Alphabet hereby agree as follows:
SECTION 1. OFFER LETTERS
(a) Alphabet hereby agrees to assume to perform any and all obligations to the individual signatories under the Offer Letters from and after the date hereof in accordance with the terms of such Offer Letters as if Alphabet, and not Google, were the signatory thereto and all references to Google therein were replaced with references to Alphabet, and from and after the date hereof, Google shall have no further obligations under the Offer Letters.
(b) Each of Google and Alphabet agree that the individual signatories to the Offer Letters and their heirs and assignees shall be express third-party beneficiaries of this Section 1 of this Agreement and entitled to enforce directly such section and the contractual rights against Alphabet under their Offer Letters granted pursuant to this Section 1.
SECTION 2. MISCELLANEOUS
(a) Each of Google and Alphabet will, from time to time and at all times hereafter, upon every reasonable request to do so by any other party hereto, make, do, execute and deliver, or cause to be made, done, executed and delivered, all such further acts, deeds, assurances and things as may be reasonably required or necessary in order to further implement and carry out the intent and purpose of this Agreement.
[Signatures Follow on Next Page]
IN WITNESS WHEREOF, the undersigned have executed this Director Arrangements Agreement as of the date first written above.
| GOOGLE INC. | ||
| a Delaware corporation | ||
| By: | /s/ Christine Flores | |
| Name: | Christine Flores | |
| Title: | Assistant Secretary | |
| ALPHABET INC. | ||
| a Delaware corporation | ||
| By: | /s/ Kent Walker | |
| Name: | Kent Walker | |
| Title: | Assistant Secretary | |
2