AGREEMENT AND PLAN OF MERGER OF INTEVAC, INC. (a Delaware corporation), AND INTEVAC, INC. (a California corporation)
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF
INTEVAC, INC.
(a Delaware corporation),
AND
INTEVAC, INC.
(a California corporation)
OF
INTEVAC, INC.
(a Delaware corporation),
AND
INTEVAC, INC.
(a California corporation)
THIS AGREEMENT AND PLAN OF MERGER, dated as of July 19, 2007 (the “Agreement”), is between
Intevac, Inc., a Delaware corporation (“Intevac Delaware”), and Intevac, Inc., a California
corporation (“Intevac California”). Intevac Delaware and Intevac California are sometimes referred
to herein as the “Constituent Corporations”.
RECITALS
(1) Intevac Delaware is a corporation duly organized and existing under the laws of the State
of Delaware with an authorized capital of 60,000,000 shares, 50,000,000 of which are designated
Common Stock, par value $0.001 per share, and 10,000,000 of which are designated Preferred Stock,
par value $0.001 per share. As of the date hereof, 1,000 shares of Common Stock of Intevac
Delaware were issued and outstanding, all of which are held by Intevac California, and no shares of
Preferred Stock of Intevac Delaware were outstanding.
(2) Intevac California is a corporation duly organized and existing under the laws of the
State of California with authorized capital of 60,000,000 shares, no par value per share,
50,000,000 of which are designated Common Stock, and 10,000,000 of which are designated Preferred
Stock. As of July 11, 2007, (i) 21,421,765 shares of Common Stock of Intevac California were
issued and outstanding, and (ii) no shares of Preferred Stock of Intevac California were issued and
outstanding.
(3) The Board of Directors of Intevac California has determined that, for the purpose of
effecting the reincorporation of Intevac California in the State of Delaware, it is advisable and
in the best interests of Intevac California and its shareholders that Intevac California merge with
and into Intevac Delaware upon the terms and conditions herein provided.
(4) The respective Boards of Directors of Intevac Delaware and Intevac California have
approved this Agreement and have directed that this Agreement be submitted to a vote of the holders
of their respective securities entitled to vote by applicable law and, upon obtaining a favorable
vote, be executed by the undersigned officers.
(5) The respective Boards of Directors of Intevac Delaware and Intevac California intend the
reincorporation of Intevac California in the State of Delaware to constitute a “plan of
reorganization” and to qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein,
Intevac Delaware and Intevac California hereby agree, subject to the terms and conditions
hereinafter set forth, as follows:
| 1) | MERGER |
a) Merger. In accordance with the provisions of this Agreement, the Delaware General
Corporation Law and the California Corporations Code, Intevac California shall be merged with and
into Intevac Delaware (the “Merger”), the separate existence of Intevac California shall cease, and
Intevac Delaware shall be (and is herein sometimes referred to as) the “Surviving Corporation.”
The name of the Surviving Corporation shall be Intevac, Inc.
b) Filing and Effectiveness. The Merger shall become effective when the following
actions shall have been completed:
i) This Agreement and the Merger shall have been adopted and approved by the sole stockholder
of Intevac Delaware and the shareholders of Intevac California in accordance with the requirements
of the Delaware General Corporation Law and the California Corporations Code, respectively;
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 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 Time of the Merger.”
c) Effect of the Merger. Upon the Effective Time of the Merger, the separate
existence of Intevac California shall cease, and Intevac 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 Time of the Merger, (ii) shall be subject to all actions
previously taken by its and Intevac California’s Board of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of Intevac 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 Time of the Merger, and (v) shall succeed, without other transfer, to all of
the debts, liabilities and obligations of Intevac California in the same manner as if Intevac
Delaware had itself incurred them, all as more
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fully provided under the applicable provisions of the Delaware General Corporation Law and the
California Corporations Code.
| 2) | CHARTER DOCUMENTS, DIRECTORS AND OFFICERS |
a) Certificate of Incorporation. The Certificate of Incorporation of Intevac Delaware
in substantially the form attached hereto as Exhibit A shall be the Certificate of
Incorporation of the Surviving Corporation, until duly amended in accordance with the provisions
thereof and applicable law.
b) Bylaws. The Bylaws of Intevac Delaware in substantially the form attached hereto
as Exhibit B shall be the Bylaws of the Surviving Corporation, until duly amended in
accordance with the provisions thereof and applicable law.
c) Directors and Officers. The directors and officers of Intevac California
immediately prior to the Effective Time 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, the Certificate of Incorporation of the Surviving Corporation or the
Bylaws of the Surviving Corporation.
| 3) | MANNER OF CONVERSION OF STOCK |
a) Intevac California Common Stock. Upon the Effective Time of the Merger, each share
of Intevac 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, of the Surviving Corporation.
b) Intevac California Options, Stock Purchase Rights and Convertible Securities. Upon
the Effective Time of the Merger, the Surviving Corporation shall assume and continue the equity
incentive plans (including without limitation the 2004 Equity Incentive Plan and the 2003 Employee
Stock Purchase Plan) and all other employee benefit plans of Intevac California. Each outstanding
and unexercised option, warrant or other right to purchase Intevac California Common Stock shall
become an option, warrant or right to purchase the Surviving Corporation’s Common Stock on the
basis of one (1) share of the Surviving Corporation’s Common Stock for every one (1) share of
Intevac California Common Stock issuable pursuant to any such option, warrant or right, on the same
terms and conditions and at an exercise price per share equal to the exercise price applicable to
any such Intevac California option, warrant or right at the Effective Time of the Merger. A number
of shares of the Surviving Corporation’s Common Stock shall be reserved for issuance upon the
exercise of options, warrants or rights equal to the number of shares of Intevac California Common
Stock so reserved immediately prior to the Effective Time of the Merger.
c) Intevac Delaware Common Stock. Upon the Effective Time of the Merger, each share
of Common Stock, $0.001 par value, of Intevac Delaware issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by Intevac Delaware,
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the holder of such shares or any other person, be canceled and returned to the status of
authorized but unissued shares.
d) Exchange of Certificates.
i) After the Effective Time of the Merger, each holder of an outstanding certificate
representing shares of Intevac California Common Stock may, at such stockholder’s option, surrender
the same for cancellation to Computershare Trust Company, N.A., 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.
ii) Until so surrendered, each outstanding certificate theretofore representing shares of
Intevac California Common Stock shall be deemed for all purposes to represent the number of whole
shares of the Surviving Corporation’s Common Stock into which such shares of Intevac 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 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.
iii) 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 Intevac 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.
iv) If any certificate for shares of the Surviving Corporation’s Common 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 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 the Surviving Corporation
that such tax has been paid or is not payable.
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| 4) | GENERAL |
a) Covenants of Intevac Delaware. Intevac Delaware covenants and agrees that it will,
on or before the Effective Time of the Merger:
i) 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 Corporations Code;
ii) File any and all documents with the appropriate tax authority of the State of California
necessary for the assumption by Intevac Delaware of all of the corporate and/or franchise tax
liabilities of Intevac California; and
iii) Take such other actions as may be required by the California Corporations Code.
b) Further Assurances. From time to time, as and when required by Intevac Delaware or
by its successors or assigns, there shall be executed and delivered on behalf of Intevac California
such deeds and other instruments, and there shall be taken or caused to be taken by Intevac
Delaware and Intevac 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 Intevac Delaware the
title to and possession of all the property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of Intevac California and otherwise to carry out the purposes of
this Agreement, and the officers and directors of Intevac Delaware are fully authorized in the name
and on behalf of Intevac California or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
c) Abandonment. At any time before the Effective Time 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 Intevac California or Intevac Delaware, or both, notwithstanding the approval
of this Agreement by the shareholders of Intevac California or by the sole stockholder of Intevac
Delaware, or by both.
d) 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 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, 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 of shares or series thereof of such Constituent Corporation.
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e) Registered Office. The registered office of the Surviving Corporation in the State
of Delaware is located at 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx
00000, and The Corporation Trust Company is the registered agent of the Surviving Corporation at
such address.
f) Agreement. Executed copies of this Agreement will be on file at the principal
place of business of the Surviving Corporation at 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000, and copies thereof will be furnished to any shareholder of either Constituent Corporation,
upon request and without cost.
g) 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 Corporations Code.
h) 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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Agreement, having first been approved by resolutions of the Boards of
Directors of Intevac Delaware and Intevac California, is hereby executed on behalf of each of such
corporation by their respective officers thereunto duly authorized.
| INTEVAC, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxx III | |||
| Xxxxxxx X. Xxxx III | ||||
| Chief Financial Officer | ||||
| INTEVAC, INC., a California corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxx III | |||
| Xxxxxxx X. Xxxx III | ||||
| Chief Financial Officer | ||||
[Signature Page to Agreement and Plan of Merger]
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
INTEVAC, INC.
(Delaware)
OF
INTEVAC, INC.
(Delaware)
EXHIBIT B
BYLAWS
OF
INTEVAC, INC.
(Delaware)
OF
INTEVAC, INC.
(Delaware)
