Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
---------
January 3, 2002, by and between Symmetricom, Inc., a California corporation (the
"California Company"), and Symmetricom, Inc., a Delaware corporation (the
------------------
"Delaware Company"), is made with reference to the following facts:
----------------
A. The California Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of California and, on
the date of this Agreement, has authority to issue One Hundred Fifty Million
-------------------------
(150,000,000) shares of common stock, no par value ("California Common Stock"),
----------- -----------------------
and Five Hundred Thousand (500,000) shares of preferred stock, no par value, of
--------------------- -------
which Two Hundred Thousand (200,000) shares have been designated Series A
-------------------- -------
Participating Preferred Stock.
B. As of September 24, 2001, the California Company had issued and
outstanding Twenty-Two Million Eight Hundred Seventy-Three Thousand One Hundred
-------------------------------------------------------------------
Eighteen (22,873,118) shares of California Common Stock, and no shares of
-------- ----------
preferred stock.
C. The Delaware Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and, on
the date of this Agreement, has authority to issue Seventy Million (70,000,000)
--------------- ----------
shares of common stock, $0.0001 par value per share ("Delaware Common Stock"),
---------------------
and Five Hundred Thousand (500,000) shares of preferred stock, $0.0001 par value
--------------------- -------
per share ("Delaware Preferred"), of which Two Hundred Thousand (200,000) shares
------------------ -------------------- -------
have been designated Series A Participating Preferred Stock.
D. The Delaware Company currently has One Hundred (100) shares of
----------- ---
Delaware Common Stock issued and outstanding, all of which are owned by the
California Company.
E. The respective Boards of Directors of the California Company and
the Delaware Company have determined that it is advisable and in the best
interests of each such corporation that the California Company be merged with
and into the Delaware Company upon the terms and subject to the conditions
provided in this Agreement for the purpose of effecting a reincorporation of the
California Company in the State of Delaware and have, by resolutions duly
adopted, approved this Agreement and directed that it be submitted to a vote of
their respective shareholders and executed by the undersigned officers.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
---------
Definitions
-----------
When used in this Agreement, the following terms shall have the
following meanings, respectively:
1.1 "California Law" shall mean the California Corporations Code as
--------------
currently in effect on the date of this Agreement.
1.2 "Delaware Law" shall mean the Delaware General Corporation Law
------------
as currently in effect on the date of this Agreement.
1.3 "Effective Time" shall mean the date and time when the Merger
--------------
shall have become effective, in accordance with Section 2.2 below.
1.4 "Merger" shall mean the merger of the California Company with
------
and into the Delaware Company.
1.5 "Rights Plan" shall mean the shareholder rights plan implemented
-----------
by the California Company pursuant to the terms of that certain Rights
Agreement, dated as of August 9, 2001, by and between the California Company and
Mellon Investor Services LLC.
1.6 "Surviving Corporation" shall mean the Delaware Company from and
---------------------
after the Effective Time.
ARTICLE 2
---------
Merger
------
2.1 Filings. 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 sole stockholder of the Delaware Company and the shareholders of
the California Company;
(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; and
(c) An executed Certificate of Merger (in the form attached hereto
as Exhibit A, the "Certificate of Merger") shall have been filed with the
Secretary of State of the State of Delaware. Following the filing with the
Secretary of State of the State of Delaware, an executed counterpart of this
Agreement, along with a certificate (substantially in the form attached hereto
as Exhibit B1 or B2, as applicable) of a duly authorized officer of both the
California Company and the Delaware Company, each meeting the requirements of
California Law, shall be submitted for filing with the Secretary of State of the
State of California.
2.2 Merger Effectiveness. The Merger shall become effective for all
--------------------
purposes under Delaware Law when proper documentation has been filed with the
Secretary of State of the State of Delaware in accordance with Section 2.1
above. The Merger shall become effective for purposes under California Law as of
the time the Merger becomes effective in Delaware (although proper documentation
will promptly be filed with the Secretary of State of the State of California in
accordance with Section 2.1 above).
-2-
2.3 Effects. At the Effective Time:
-------
(a) the California Company shall be merged with and into the
Delaware Company and the separate existence of the California Company shall
cease;
(b) the Amended and Restated Certificate of Incorporation of the
Delaware Company (the "Certificate of Incorporation") in effect at the Effective
Time shall continue as the Certificate of Incorporation of the Surviving
Corporation;
(c) the Bylaws of the Delaware Company (the "Bylaws") in effect at
the Effective Time shall continue as the Bylaws of the Surviving Corporation;
(d) the Board of Directors of the Surviving Corporation shall be
comprised of: Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxx X.
Xxxxxxxxxx, Xx., Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx;
(e) each officer of the California Company in office immediately
prior to the Effective Time shall become an officer in the same capacity of the
Surviving Corporation;
(f) the shares of California Common Stock outstanding immediately
prior to the Effective Time shall be converted into shares of Delaware Common
Stock pursuant to Article 3 below, with an amount equal to the par value of the
Delaware Common Stock to be allocated to the stated capital account of the
Delaware Company, and all amounts in excess of such amount shown on the books of
the California Company to be allocated to retained earnings or the capital
surplus account, in accordance with good accounting practice; and
(g) without further transfer, act or deed, the separate existence of
the California Company shall cease and the Surviving Corporation shall possess
all of the rights, privileges, powers and franchises of a public as well as of a
private nature, and shall be subject to all the restrictions, disabilities and
duties of the California Company; and each and all of the rights, privileges,
powers and franchises of the California Company, and all property, real,
personal and mixed, and all debts due to the California Company on whatever
account, stock subscriptions and other things in action or belonging to the
California Company shall be vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and each and every other
interest of the California Company shall be thereafter as effectually the
property of the Surviving Corporation as they were of the California Company;
and the title to any real estate vested by deed or otherwise, under the laws of
the State of Delaware, in the California Company shall not revert or be in any
way impaired by reason of the Merger; and all rights of creditors of the
California Company and all liens upon any property of the California Company
shall be preserved unimpaired; and all debts, liabilities and duties of the
California Company shall thenceforth attach to the Surviving Corporation and may
be enforced against it to the same extent as if such debts, liabilities and
duties had been incurred or contracted by it.
2.4 Further Assurances. The California Company agrees that if, at
------------------
any time after the Effective Time, the Surviving Corporation shall consider or
be advised that any further deeds, assignments or assurances are necessary or
desirable to vest, perfect or confirm in the Surviving Corporation title to any
property or rights of the California Company, the Surviving Corporation and its
proper officers and directors may execute and deliver all such proper deeds,
assignments
-3-
and assurances and do all other things necessary or desirable to vest, perfect
or confirm title to such property or rights in the Surviving Corporation and
otherwise to carry out the purposes of this Agreement, in the name of the
California Company or otherwise.
ARTICLE 3
---------
Conversion of Shares
--------------------
3.1 Conversion of Shares. At the Effective Time:
-------------------------------------------
(a) each share of California Common Stock issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into one (1)
share of Delaware Common Stock; and
(b) each share of Delaware Common Stock issued and outstanding immediately
prior to the Effective Time shall be canceled and retired and no shares shall be
issued in the Merger in respect thereof.
3.2 Stock Certificates. At and after the Effective Time, all of the
------------------
outstanding certificates which immediately prior to the Effective Time represent
shares of California Common Stock shall be deemed for all purposes to evidence
ownership of, and to represent, the shares of Delaware Common Stock into which
such shares formerly represented by such certificates have been converted as
provided in this Agreement. The registered owner on the books and records of the
Delaware Company or its transfer agents of any such outstanding stock
certificate shall, until such certificate shall have been surrendered for
transfer or otherwise accounted for to the Delaware Company or its transfer
agents, have and be entitled to exercise any voting and other rights with
respect to, and to receive any dividends and other distributions upon, the
shares of stock evidenced by such outstanding certificate as above provided.
3.3 Stock Purchase Option Plans. Each right or option to purchase shares
---------------------------
of capital stock of the California Company granted under the California
Company's Amended and Restated Non-Qualified Stock Option Plan (1982), 1990
Director Option Plan, 1990 Employee Stock Plan, 1994 Employee Stock Purchase
Plan, and any other equity incentive plan of the California Company (the "Stock
-----
Plans"), or granted irrespective of and not in connection with the Plans, which
-----
is outstanding immediately prior to the Effective Time, shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and become a right or option to purchase the same number of shares of
Delaware Common Stock at the same price per share. The same number of shares of
Delaware Common Stock shall be reserved for purposes of the Plans as are equal
to the number of shares of California Common Stock so reserved as of the
Effective Time.
3.4 Rights Plan. Without limiting and in furtherance of Section 2.3 above,
-----------
the Rights Plan shall, upon the Effective Time, be assumed by the Delaware
Company. Each right issued in connection with the Rights Plan which is attached
to each share of California Common Stock immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into and become a right, with the same powers and
-4-
privileges, attached to each share of Delaware Common Stock. The same number of
shares of Series A Participating Preferred Stock, par value $0.0001 per share,
of the Delaware Company shall be reserved for issuance under the Rights Plan (as
assumed) as the number of shares of the California Company's Series A
Participating Preferred Stock, no par value, so reserved by the California
Company as of the Effective Time.
3.5 Validity of Delaware Stock. All shares of Delaware Common Stock into
--------------------------
which California Common Stock is to be converted pursuant to the Merger shall
not be subject to any statutory preemptive rights, shall be validly issued,
fully paid and nonassessable and shall be issued in full satisfaction of all
rights pertaining to such California Common Stock.
3.6 Rights of Former Holders. From and after the Effective Time, no holder
------------------------
of certificates which evidenced California Common Stock immediately prior to the
Effective Time shall have any rights with respect to the shares formerly
evidenced by those certificates, other than to receive the shares of Delaware
Common Stock into which such shares shall have been converted pursuant to the
Merger.
ARTICLE 4
---------
Covenants To Be Performed Prior to Closing Date
-----------------------------------------------
4.1 Consents. Each of the California Company and the Delaware Company
--------
shall use its best efforts to obtain the consent and approval of each person
whose consent or approval shall be required in order to permit consummation of
the Merger.
4.2 Governmental Authorizations. Each of the California Company and the
---------------------------
Delaware Company shall cooperate in filing any necessary reports or other
documents with any federal, state, local or foreign authorities having
jurisdiction with respect to the Merger.
ARTICLE 5
---------
Conditions
----------
The obligations of the California Company and the Delaware Company to
consummate the Merger are subject to satisfaction of the following conditions:
5.1 Authorization. The holders of a majority of the California Common
-------------
Stock shall have approved and adopted this Agreement and the Merger in
accordance with California Law. All necessary action shall have been taken to
authorize the execution, delivery and performance of this Agreement by the
California Company and the Delaware Company. The California Company and the
Delaware Company shall have full power and authority to consummate the Merger.
5.2 Consents and Approvals. All authorizations, consents and approvals
----------------------
(contractual or otherwise) of any state, federal, local or foreign government
agency, regulatory body or official or any person (other than the California
Company or the Delaware Company) necessary
-5-
for the valid consummation of the Merger in accordance with this Agreement shall
have been obtained and shall be in full force and effect.
ARTICLE 6
---------
Miscellaneous
-------------
6.1 Waiver and Amendment. This Agreement may be amended by action of the
--------------------
respective Boards of Directors of the California Company and the Delaware
Company without action by the respective shareholders and stockholder of the
parties, except that (i) any amendments to Section 3.1 above, (ii) any amendment
changing the terms, rights, powers or preferences of Delaware Common Stock or
(iii) any amendment altering any terms of this Agreement, if such alteration
would adversely affect the holders of any class or series of the capital stock
of the California Company or the Delaware Company, must be approved by the
holders of a majority of the California Common Stock.
6.2 Termination; Abandonment. This Agreement may be terminated and the
------------------------
Merger and other transactions provided for by this Agreement abandoned at any
time prior to the Effective Time, whether before or after adoption and approval
of this Agreement by the shareholders of the California Company, by action of
the Board of Directors of the California Company if the Board determines that
the consummation of the transactions contemplated by this Agreement would not,
for any reason, be in the best interests of the California Company and its
shareholders.
6.3 Entire Agreement. This Agreement contains the entire agreement among
----------------
the parties with respect to the Merger and supersedes all prior and concurrent
arrangements, letters of intent or understandings relating to the Merger.
6.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be an original, but all of which when taken
together shall constitute one and the same agreement. This Agreement shall
become effective when one or more counterparts have been signed by each of the
parties and delivered to each of the parties.
6.5 Headings. The article, section and paragraph headings in this
--------
Agreement are intended principally for convenience and shall not, by themselves,
determine rights and obligations of the parties to this Agreement.
6.6 No Waiver. No waiver by any party of any condition, or the breach of
---------
any term or covenant contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or breach of any other term or covenant contained in this Agreement.
6.7 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware, and so far as applicable, the
merger provisions of the California Corporations Code.
-6-
6.8 Approval of the California Company as the Sole Stockholder of
-------------------------------------------------------------
the Delaware Company. By its execution and delivery of this Agreement, the
--------------------
California Company, as the sole stockholder of the Delaware Company, consents
to, approves and adopts this Agreement and approves the Merger, subject to the
approval and adoption of this Agreement by the holders of a majority of the
shares of the California Common Stock, pursuant to Section 5.1. The California
Company agrees to execute such instruments as may be necessary or desirable to
evidence its approval and adoption of this Agreement and the Merger as the sole
stockholder of the Delaware Company.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
SYMMETRICOM, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx,
Chief Executive Officer
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx, Secretary
SYMMETRICOM, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx,
Chief Executive Officer
By: Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx, Secretary
-7-
EXHIBIT A
CERTIFICATE OF MERGER OF
SYMMETRICOM, INC. WITH AND INTO SYMMETRICOM, INC.
(a California corporation) (a Delaware corporation)
The undersigned corporation, organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY
THAT:
FIRST: The name and state of incorporation of each of the constituent
corporations in the merger (the "Constituent Corporations") are as follows:
------------------------
Name State of Incorporation
------------------------- -----------------------------
Symmetricom, Inc. California
Symmetricom, Inc. Delaware
SECOND: An Agreement and Plan of Merger dated as of January [XX], 2002
(the "Merger Agreement") among Symmetricom, Inc., a California corporation
----------------
("California Company"), and Symmetricom, Inc., a Delaware corporation and a
------------------
wholly owned subsidiary of California Company ("Delaware Company"), has been
----------------
approved, adopted, certified, executed and acknowledged by each of the
Constituent Corporations in accordance with the requirements of Section 252 of
the General Corporation Law of the State of Delaware.
THIRD: Delaware Company shall be the surviving corporation of the
merger (the "Surviving Corporation").
---------------------
FOURTH: The Amended and Restated Certificate of Incorporation of
Delaware Company shall be the certificate of incorporation of the Surviving
Corporation.
FIFTH: The executed Merger Agreement is on file at an office of the
Surviving Corporation located at 0000 Xxxxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxxxx
000000000, a copy of which will be furnished by the Surviving Corporation, upon
request and without cost, to any stockholder of either Constituent Corporation.
A-1
IN WITNESS WHEREOF, this Certificate of Merger has been executed on
this [____] day of January, 2002.
SYMMETRICOM, INC.
(a Delaware corporation)
By: _______________________________
Its: Chief Executive Officer
ATTEST:
By: _______________________________
Its: Secretary
X-0
XXXXXXX X-0
SYMMETRICOM, INC.,
a California corporation
OFFICERS' CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxx hereby certify that:
1. They are the Chief Executive Officer and Secretary, respectively, of
Symmetricom, Inc., a California corporation (the "Corporation").
2. The Agreement and Plan of Merger in the form attached was duly
approved by the board of directors of the Corporation.
3. The Corporation is authorized to issue two classes of stock designated
"Preferred Stock" and "Common Stock," respectively. The total number
of outstanding shares of the Corporation is 22,873,118 shares of
Common Stock.
4. The shareholder approval was by the vote of a number of shares which
equaled or exceeded the vote required. The percentage vote required
was more than 50% of the outstanding shares of Common Stock.
We hereby declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
Dated: January __, 2002
_______________________________________
Xxxxxx X. Xxxxxx
Chief Executive Officer
_______________________________________
Xxxxxxx Xxxxxx
Secretary
B-1
EXHIBIT B-2
SYMMETRICOM, INC.,
a Delaware corporation
OFFICERS' CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxx hereby certify that:
1. They are the Chief Executive Officer and Secretary, respectively, of
Symmetricom, Inc., a Delaware corporation (the "Corporation").
2. The Agreement and Plan of Merger in the form attached was duly
approved by the board of directors and shareholders of the
Corporation.
3. The total number of outstanding shares of the Corporation is 100
shares of Common Stock.
4. The shareholder approval was by the vote of a number of shares which
equaled or exceeded the vote required. The percentage vote required
was more than 50% of the outstanding shares of Common Stock.
We hereby declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
Dated: January __, 2002
______________________________________
Xxxxxx X. Xxxxxx
Chief Executive Officer
______________________________________
Xxxxxxx Xxxxxx
Secretary
B-2