Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF SM&A
A DELAWARE CORPORATION,
AND
SM&A
A CALIFORNIA CORPORATION
This Agreement and Plan of Merger
dated as of November 30, 2006 (the “Agreement”) is
between SM&A, a California corporation (“SM&A
California”), and SM&A, a Delaware corporation
(“SM&A Delaware”). SM&A Delaware and
SM&A California are sometimes referred to in this Agreement as
the “Constituent Corporations.”
R E CI T A L S
A.
SM&A Delaware is a corporation duly organized and existing
under the laws of the State of Delaware and has an authorized
capital of 60,000,000 shares, 50,000,000 of which are designated
“Common Stock,” $0.0001 par value, and 10,000,000 of
which are designated “Preferred Stock,” $0.0001 par
value. As of the date of this Agreement, 100 shares of
SM&A Delaware Common Stock were issued and outstanding, all of
which are held by SM&A California, and no shares of Preferred
Stock were issued and outstanding.
B.
SM&A California is a corporation duly organized and existing
under the laws of the State of California and has an authorized
capital of 60,000,000 shares, 50,000,000 of which are designated
“Common Stock,” no par value and 10,000,000 of which
are designated “Preferred Stock,” no par value.
As of October 31, 2006, 18,751,204 shares of SM&A California
Common Stock were issued and outstanding and no shares of Preferred
Stock were issued and outstanding.
C.
The Board of Directors of SM&A California has determined that,
for the purpose of effecting the reincorporation of SM&A
California in the State of Delaware, it is advisable and in the
best interests of SM&A California that SM&A California
merge with and into SM&A Delaware upon the terms and conditions
provided in this Agreement.
D.
The respective Boards of Directors of SM&A Delaware and
SM&A California have approved this Agreement and have directed
that this Agreement be submitted to a vote of their respective
stockholders and executed by the undersigned officers.
A G R E E M E N T
In consideration of the mutual
agreements and covenants set forth herein, SM&A Delaware and
SM&A California hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
1.
Merger .
1.1
Merger . In accordance with the provisions of this
Agreement, the Delaware General Corporation Law and the California
General Corporation Law, SM&A California shall be merged with
and into SM&A Delaware (the “Merger”), the separate
existence of SM&A California shall cease and SM&A Delaware
shall be, and is sometimes referred to below as, the
“Surviving Corporation,” and the name of the Surviving
Corporation shall be SM&A.
1.2
Filing and Effectiveness . The Merger shall become
effective upon completion of the following actions:
(a)
Adoption and approval of this Agreement and the Merger by the
stockholders of each Constituent Corporation in accordance with the
applicable requirements of the Delaware General Corporation Law and
the California General Corporation Law;
(b)
The satisfaction or waiver of all of the conditions precedent to
the consummation of the Merger as specified in this Agreement;
and
(c)
The filing with the Secretary of State of Delaware of an executed
Certificate of Merger or an executed counterpart of this Agreement
meeting the requirements of the Delaware General Corporation
Law.
The date and time when the Merger
becomes effective is referred to in this Agreement as the
“Effective Date of the Merger.”
1.3
Effect of the Merger . Upon the Effective Date of the
Merger, the separate existence of SM&A California shall cease
and SM&A Delaware, as the Surviving Corporation, (a) shall
continue to possess all of its assets, rights, powers and property
as constituted immediately prior to the Effective Date of the
Merger, (b) shall be subject to all actions previously taken by its
and SM&A California’s Board of Directors, (c) shall
succeed, without other transfer, to all of the assets, rights,
powers and property of SM&A California in the manner more fully
set forth in Section 259 of the Delaware General Corporation Law,
(d) shall continue to be subject to all of the debts, liabilities
and obligations of SM&A Delaware as constituted immediately
prior to the Effective Date of the Merger, and (e) shall succeed,
without other transfer, to all of the debts, liabilities and
obligations of SM&A California in the same manner as if
SM&A Delaware had itself incurred them, all as more fully
provided under the applicable provisions of the Delaware General
Corporation Law and the California General Corporation
Law.
2.
Charter Documents, Directors and
Officers
2.1
Certificate of Incorporation . The Certificate of
Incorporation of SM&A Delaware as in effect immediately prior
to the Effective Date of the Merger shall continue in full force
and effect as the Certificate of Incorporation of the Surviving
Corporation until duly amended in accordance with the provisions
thereof and applicable law.
2.2
Bylaws . The Bylaws of SM&A Delaware as in effect
immediately prior to the Effective Date of the Merger shall
continue in full force and effect as the Bylaws of the Surviving
Corporation until duly amended in accordance with the provisions
thereof and applicable law.
2.3
Directors and Officers . The directors and officers of
SM&A Delaware immediately prior to the Effective Date of the
Merger shall be the directors and officers of the Surviving
Corporation until their successors shall have been duly elected and
qualified or as otherwise provided by law, the Certificate of
Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
2
3.
Manner of Conversion of
Stock
3.1
SM&A California Common Stock . Upon the Effective
Date of the Merger, each one share of SM&A 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 share or any other person, be
converted into and exchanged for one fully paid and nonassessable
share of Common Stock, $0.0001 par value, of the Surviving
Corporation. No fractional share interests of the Surviving
Corporation shall be issued. In lieu thereof, each holder of
shares of SM&A California shall receive from SM&A Delaware
an amount of cash equal to the average closing prices of SM&A
California Common Stock as quoted on the Nasdaq National Market for
five (5) consecutive trading days ending three (3) business days
prior to the closing date of the Merger. Any fractional share
interests to which a holder would otherwise be entitled shall be
aggregated so that no SM&A California shareholder shall receive
cash in an amount greater than the value of one (1) full share of
SM&A Delaware Common Stock.
3.2
SM&A California Options, Stock Purchase Rights and
Co
