AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
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THIS AGREEMENT OF MERGER AND PLAN OF REORGANIZATION ("Agreement") dated
as of May 21, 1997 by and between ZILOG, INC., a California corporation (the
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"California Company") and ZILOG, INC., a Delaware corporation (the "Delaware
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Company"),
WITNESSETH:
WHEREAS, 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 Seventy-Five Million
(75,000,000) shares of Common Stock, without par value, of which Twenty Million
Two Hundred Sixteen Thousand One Hundred Thirty-Six (20,216,136) shares are
issued and outstanding and One Hundred Ninety (190,000) shares of Preferred
Stock, without par value. There are no shares of Preferred Stock outstanding;
and
WHEREAS, 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-Five Million
(75,000,000) shares of Common Stock, $.01 par value, of which One Hundred (100)
shares are issued and outstanding, all of which are owned by the California
Company, and One Hundred Ninety (190,000) shares of Preferred Stock, $.01 par
value. There are no shares of Preferred Stock outstanding; and
WHEREAS, upon the effectiveness of the Merger, all of the outstanding
Common Stock of the California Company will be converted into Common Stock of
the Delaware Company; and
WHEREAS, 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 of such corporations that the California Company merge into
the Delaware Company under and pursuant to the General Corporation Laws of
Delaware and California and 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 in a transaction qualifying as a
reorganization within the meaning of Section 368(a)(1)(F) of the Internal
Revenue Code 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 do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby promise and agree that the
California Company shall merge with and into the Delaware Company on the
following terms, conditions and other provisions:
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ARTICLE 1
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Definitions
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When used in this Agreement (and any Exhibit in which such terms are not
otherwise defined) the following terms shall have the following meanings,
respectively:
1.1 "California Common Stock" shall mean shares of Common Stock,
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without par value, of the California Company.
1.2 "California GCL" shall mean the California General Corporation Law.
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1.3 "Delaware Common Stock" shall mean shares of Common Stock, par value
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$.01 per share, of the Delaware Company.
1.4 "Delaware GCL" shall mean the Delaware General Corporation Law.
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1.5 "Effective Time" shall mean the date and time when the Merger shall
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become effective, in accordance with Section 2.1.
1.6 "Merger" shall mean the merger of the California Company into the
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Delaware Company.
1.7 "Surviving Corporation" shall mean the Delaware Company from and
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after the Effective Time.
ARTICLE 2
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Merger
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2.1 Filings and Effectiveness. The Merger shall become effective when the
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following actions shall have been completed:
(i) This Agreement and the Merger shall have been adopted and
approved (a) in accordance with the California GCL by the shareholders
of the California Company and (b) in accordance with the Delaware GCL
by the California Company, as the sole stockholder of the Delaware
Company and;
(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 shall have been filed with the Secretary
of State of the State of Delaware; and
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(iv) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the
California GCL shall have been submitted for filing with the Secretary
of State of the State of California.
2.2 Merger. At the Effective Time, the Merger shall become effective
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under Section 252 of the Delaware GCL and Section 1108(d) of the California GCL,
and the California Company shall merge into the Delaware Company, the separate
existence of the California Company shall cease, and the Delaware Company shall
continue in existence under the Delaware GCL.
2.3 Effects. At the Effective Time:
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(i) the separate existence of the California Company shall cease
and the California Company shall be merged into the Delaware Company;
(ii) the Certificate of Incorporation of the Delaware Company
shall continue as the Certificate of Incorporation of the Surviving
Corporation until changed or amended as provided by law;
(iii) the bylaws of the Delaware Company shall continue as the
bylaws of the Surviving Corporation until amended as provided therein;
(iv) the Statement and Designation By Foreign Corporation of the
Delaware Company shall be amended to reflect the name of the Delaware
Company as stated in its Certificate of Incorporation.
(v) the Certificates of Authorities in each jurisdiction of the
California Company shall be withdrawn and the Certificates of Authorities
of the Delaware Company shall be simultaneously filed to duly qualify the
Delaware Company to transact business in such jurisdictions as a foreign
entity.
(vi) the directors of the California Company in office on the
Effective Date shall be and continue as directors of the Surviving
Corporation until their successors are elected in accordance with the
Certificate of Incorporation and the bylaws of the Surviving Corporation
and are duly qualified;
(vii) each officer of the California Company in office on the
Effective Date shall be and continue as an officer of the Surviving
Corporation and, until their successors are elected or appointed in
accordance with the bylaws of the Surviving Corporation and are duly
qualified, such officers shall hold the office in the same capacity of
the Surviving Corporation which they held before the Merger;
(viii) each share of California Common Stock outstanding
immediately prior to the Effective Time shall be converted into one share
of Delaware Common Stock pursuant to Article 3 below; and
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(ix) without further transfer, act or deed, the separate existence
of the California Company shall cease and the Surviving Corporation shall
possess all 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, immunities, 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 States of Delaware or California or of any other
jurisdiction, in the California Company shall not revert or be in any way
impaired by reason of the Merger; but 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
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time, or from time to 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, rights, privileges, immunities, powers or
franchises of the California Company, the Surviving Corporation and its proper
officers and directors may execute and deliver all such proper deeds,
assignments and assurances and do all other things necessary or desirable to
vest, perfect or confirm title to such property, rights, privileges, immunities,
powers or franchises 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
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Conversion of Shares
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3.1 Conversion of Shares. At the Effective Time, the California Common
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Stock shall be converted into Delaware Common Stock as follows:
(i) 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 share of Delaware Common Stock;
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(ii) each share of Delaware Common Stock issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger,
be canceled without consideration and shall resume the status of
authorized and unissued shares of Delaware Common Stock; and
(iii) each share of Delaware Common Stock will continue to be
quoted on the New York Stock Exchange ("NYSE") under the symbol "ZLG"
without interruption, as shares of the California Common Stock now quoted
and traded.
3.2 Stock Certificates. At and after the Effective Time, all of the
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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, shares of Delaware Common Stock into which the
shares of California Common Stock 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 Delaware Common Stock evidenced by such outstanding
certificate as above provided.
3.3 Employee or Director Option and Benefit Plans. Each option or other
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right to purchase or otherwise acquire shares of California Common Stock granted
under any employee or director option or benefit plan of the California Company
(collectively, 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 an option or right to
purchase or acquire (and the Delaware Company hereby assumes the obligation to
deliver) the same number of shares of Delaware Common Stock at the same price
per share, and upon the same terms and subject to the same conditions, as set
forth in each of the Plans, as in effect at the Effective Time. The same number
of shares of Delaware Common Stock shall be reserved for purposes of the Plans
as is equal to the number of shares of California Common Stock so reserved as of
the Effective Time. As of the Effective Time, the Delaware Company hereby
assumes the Plans and all obligations of the California Company under the Plans
including the outstanding options and rights granted pursuant to the Plans.
3.4 Validity of Delaware Common Stock. All shares of Delaware Common
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Stock into which California Common Stock are to be converted pursuant to the
Merger shall not be subject to any statutory or contractual 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.
3.5 Rights of Former Holders. From and after the Effective Time, no
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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
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certificates, other than to receive the shares of Delaware Common Stock into
which such California Common Stock shall have been converted pursuant to the
Merger.
ARTICLE 4
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Covenants To Be Performed Prior to Closing Date
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4.1 Consents. Each of the California Company and the Delaware Company
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shall use its best efforts to obtain the consent and approval of each person
(other than shareholders of the California Company in their capacities as such)
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
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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
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Conditions
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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 voting power of the
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California Company shall have approved and adopted this Agreement and the Merger
at a meeting of the shareholders. 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
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(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 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
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Miscellaneous
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6.1 Waiver and Amendment. This Agreement may be amended by action of the
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respective Boards of Directors of the California Company and the Delaware
Company without action by the shareholders or stockholders of the parties,
except that any amendment
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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 a majority of the voting
power of the California Company.
6.2 Termination. This Agreement may be terminated and the Merger and
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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 No Waiver. No waiver by any party of any condition, or the breach of
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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.
6.4 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California applicable to contracts
entered into and to be performed wholly within the State of California, except
to the extent that the laws of the State of Delaware are mandatorily applicable
to the Merger.
6.5 Approval of the California Company as the Sole Stockholder of the
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Delaware Company. By its execution and delivery of this Agreement, the
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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
voting power of the California Company 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
CALIFORNIA COMPANY: ZILOG, INC., a California corporation
By: /s/ Xxxxx X. Xxxx
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Its: President and CEO
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Attest:
/s/ Xxxxxxx X. Xxxxxxx
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Secretary
DELAWARE COMPANY: ZILOG, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxx
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Its: President and CEO
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Attest:
/s/ Xxxxxxx X. Xxxxxxx
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Secretary
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