Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger dated as of November 6, 2008 (the
“ Agreement ”) is between Landec Corporation, a
California corporation (“ Landec California ”),
and Landec Corporation, a Delaware corporation (“ Landec
Delaware ”). Landec Delaware and Landec California are
sometimes referred to in this Agreement as the “
Constituent Corporations .”
RECITALS
A.
Landec Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of
100 shares designated as “ Common Stock ,”
$0.001 par value. As of the date of this Agreement, all shares
of Landec Delaware Common Stock were issued and
outstanding.
B.
Landec California is a corporation duly organized and existing
under the laws of the State of California and has an authorized
capital of 52,000,000 shares, 50,000,000 of which are
designated “ Common Stock ,” $0.001 par value
and 2,000,000 of which are designated “ Preferred
Stock ,” $0.001 par value. As of the date of this
Agreement, 26,175,069 shares of Common Stock were issued and
outstanding and no shares of Preferred Stock were issued and
outstanding.
C. The Board of Directors of Landec California has determined
that, for the purpose of effecting the reincorporation of Landec
California in the State of Delaware, as a reorganization within the
provisions of Section 368(a)(1)(F) of the Internal Revenue Code of
1986, as amended and the regulations promulgated thereunder, it is
advisable and in the best interests of Landec California that
Landec California merge with and into Landec Delaware upon the
terms and conditions provided in this Agreement.
D. The respective Boards of Directors of Landec Delaware and
Landec 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.
E.
The respective shareholders of Landec Delaware and Landec
California have approved this Agreement at the 2008 annual
shareholder meeting.
F.
The closing of the transactions contemplated by this Agreement will
therefore take place after the Landec California shareholders
approve the reincorporation and this Agreement and other conditions
to closing are satisfied.
AGREEMENT
In
consideration of the mutual agreements and covenants set forth
herein, Landec Delaware and Landec 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 General
Corporation Law of Delaware and the California Corporations Code,
Landec California shall be merged with and into Landec Delaware
(the “ Merger ”), the separate existence of
Landec California shall cease and Landec Delaware shall be, and is
sometimes referred to below as, the “ Surviving
Corporation ,” and the name of the Surviving Corporation
shall be Landec Corporation.
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 Landec Delaware and the shareholders of Landec California in
accordance with the applicable requirements of the General
Corporation Law of Delaware and the California Corporations
Code;
(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 General Corporation Law of
Delaware.
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 Landec California shall cease and Landec 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 Landec
California’s Board of Directors, (c) shall succeed,
without other transfer, to all of the assets, rights, powers and
property of Landec California in the manner more fully set forth in
Section 259 of the General Corporation Law of Delaware,
(d) shall continue to be subject to all of the debts,
liabilities and obligations of Landec 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 Landec California in the same
manner as if Landec Delaware had itself incurred them, all as more
fully provided under the applicable provisions of the General
Corporation Law of Delaware and the California Corporations
Code.
2.
Charter Documents, Directors and Officers
2.1 Certificate of
Incorporation . The Certificate of Incorporation of Landec
Delaware, attached hereto as Exhibit A (the “
Certificate of Incorporation ”), shall be the
Certificate of Incorporation of the Surviving Corporation
immediately following the Merger until duly amended in accordance
with the provisions thereof and applicable law.
2.2 Bylaws . The
Amended and Restated Bylaws of Landec Delaware, attached hereto as
Exhibit B (the “ Bylaws ”), shall be the
Bylaws of the Surviving Corporation immediately following the
Merger until duly amended in accordance with the provisions thereof
and applicable law.
2.3 Directors and Officers
. The directors and officers of Landec California 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.
3.
Manner of Conversion of Stock
3.1 Landec California Common
Stock . Upon the Effective Date of the Merger, each one
share of Landec 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 non-assessable share of Common Stock,
$.001 par value, of the Surviving Corporation.
3.2 Landec California Options, Stock
Purchase Rights and Convertible Securities .
(a) Upon the
Effective Date of the Merger, the Surviving Corporation shall
assume and continue any and all stock option, stock incentive,
employee benefit and other equity-based award plans heretofore
adopted by Landec California (the “ Plans ”).
Each outstanding and unexercised option, other right to purchase,
or security convertible into, Landec California Common Stock (a
“ Right ”) shall become an option, right to
purchase, or a security convertible into the Surviving
Corporation’s Common Stock, respectively, on the basis of one
share of the Surviving Corporation’s Common Stock, as the
case may be, for each one share of Landec California Common Stock,
issuable pursuant to any such Right, on the same terms and
conditions and at an exercise price equal to the exercise price
applicable to any such Right at the Effective Da
