Exhibit 2.1
AGREEMENT AND PLAN OF MERGER AND
REINCORPORATION
THIS AGREEMENT AND PLAN OF MERGER
AND REINCORPORATION, dated as of June 30, 2006, (this
“Agreement” ) is made by and between CMD
Re-Incorporation Corporation, a Delaware corporation
(“CMD Delaware”) and California Micro
Devices Corporation, a California corporation
(“CMD”) .
RECITALS
A. CMD Delaware is a Delaware
corporation and has an authorized capital of 60,000,000 shares
with $0.001 par value, 50,000,000 of which are designated Common
Stock and 10,000,000 of which are designated Preferred Stock,
400,000 of which are designated Series A Participating Preferred
Stock. As of the date of this Agreement, 1,000 shares of CMD
Delaware Common Stock and no shares of CMD Delaware Preferred Stock
are issued and outstanding.
B. CMD is a California corporation
and has an authorized capital of 60,000,000 shares with no par
value, 50,000,000 of which are designated Common Stock and
10,000,000 of which are designated Preferred Stock, 400,000 of
which are designated Series A Participating Preferred Stock. As of
the date of this Agreement, 22,991,231 shares of CMD Common Stock
and no shares of CMD Preferred Stock are issued and
outstanding.
C. The Board of Directors of CMD has
determined that, for the purpose of effecting the reincorporation
of CMD in the State of Delaware, it is advisable and in the best
interests of CMD and its shareholders that CMD merge with and into
CMD Delaware (the “Reincorporation Merger”) upon the
terms and conditions provided in this Agreement.
D. The Board of Directors of CMD has
further determined that it is in the best interests of CMD and its
shareholders to approve this Agreement and the Reincorporation
Merger, has directed the officers of CMD to submit this Agreement
to its shareholders for adoption and approval, and has authorized
the undersigned officers to execute this Agreement on behalf of
CMD.
E. The Board of Directors of CMD
Delaware has further determined that it is in the best interests of
CMD Delaware and its stockholder to approve this Agreement and
Reincorporation Merger, has directed the officers of CMD Delaware
to submit this Agreement to its sole stockholder for adoption and
approval, and has authorized the undersigned officers to execute
this Agreement on behalf of CMD Delaware.
F. The closing of the transactions
contemplated by this Agreement will therefore take place after the
CMD shareholders approve the reincorporation and this Agreement and
other conditions to closing are satisfied.
NOW, THEREFORE, in consideration of the mutual
agreements and covenants set forth herein, CMD Delaware and CMD
hereby agree, subject to the terms and conditions hereinafter set
forth, as follows:
Section 1. The
Reincorporation Merger. Subject to the terms and conditions set forth
herein, CMD will be merged with and into CMD Delaware, and CMD
Delaware will be the surviving entity of the Reincorporation Merger
and CMD the disappearing entity. The Reincorporation Merger will be
undertaken in accordance with the provisions of this Agreement, the
Delaware General Corporation Law (the
“DGCL” ) and the California Corporations
Code (the “CCC” ).
(a) Filing and
Effectiveness . The Reincorporation Merger shall become
effective when the following actions shall have been
completed:
(i) This Agreement and the
Reincorporation Merger shall have been adopted and approved by the
stockholder of CMD Delaware and the shareholders of CMD in
accordance with the requirements of the DGCL and the
CCC;
(ii) All of the conditions precedent
to the consummation of the Reincorporation Merger specified in this
Agreement shall have been satisfied or duly waived by the party
entitled to satisfaction thereof; and
(iii) An executed Certificate of
Merger in the form of Exhibit A meeting the requirements of
the Delaware General Corporation Law shall have been filed with the
Secretary of State of the State of Delaware; provided
that
a filing is made with the Secretary
of State of the State of California satisfying the provisions of
CCC Section 1108(c) is made within the six months following
the filing under Section 1(b)(iii) above.
The date and time when the
Reincorporation Merger shall become effective, pursuant to the
provisions of (i) Section 103 of the DGCL and
(ii) Section 1108(c) of the CCC, is herein called the
“Effective Date of the
Merger.”
(b) Effect of the Merger
. Upon the Effective Date of the Merger, the separate existence
of CMD shall cease and CMD 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 Date of the Merger, (ii) shall be subject to all
actions previously taken by CMD’s Board of Directors,
(iii) shall succeed, without other transfer, to all of the
assets, rights, powers and property of CMD in the manner more fully
set forth in Section 259 of the DGCL, (iv) shall continue
to be subject to all of the debts, liabilities and obligations of
CMD as constituted immediately prior to the Effective Date of the
Merger and (v) shall succeed, without other transfer, to all
of the debts, liabilities and obligations of CMD in the same manner
as if CMD Delaware had itself incurred them, all as more fully
provided under the applicable provisions of the DGCL and the
CCC.
Section 2. Directors,
Officers and Governing Documents. The persons who are members of the board of
directors of CMD immediately prior to consummation of the
Reincorporation Merger will be members of the board of directors of
CMD Delaware at the Effective Time. The persons who serve as
officers of CMD immediately prior to consummation of the
Reincorporation Merger will serve in the same capacities as
officers of CMD Delaware at
the Effective Time. Each of the officers and
directors of CMD Delaware will hold office in accordance with the
constituent documents of CMD Delaware. At the Effective Time, the
certificate of incorporation of CMD Delaware, as in effect
immediately prior to consummation of the Reincorporation Merger,
will continue to be the certificate of incorporation of CMD
Delaware; provided however, that such certificate of incorporation
will be amended and restated at the Effective Time, as set forth in
Section 3 below. At the Effective Time, the bylaws of CMD
Delaware, as in effect immediately prior to consummation of the
Reincorporation Merger, will continue to be the bylaws of CMD
Delaware at the Effective Time; provided, however, that such bylaws
will indicate that the name of the corporation is “California
Micro Devices Corporation” and the number of authorized
directors shall be increased as provided in such bylaws.
Section 3.
Amendment. At the
Effective Time, the Certificate of Incorporation of CMD Delaware
shall be amended and restated substantially in the form attached as
Exhibit B and filed with the Secretary of State of the State
of Delaware.
Section 4. Effect on Capital
Stock
(a) CMD Common Shares
. Upon the Effective Date of the Merger, each share of CMD
Common Stock, no par value, issued and outstanding immediately
prior thereto shall by virtue of the Reincorporation Merger (and
without any action by CMD or CMD Delaware, the holder of such
shares or any other person) be converted into and exchanged for one
fully paid and non-assessable share of Common Stock, $0.001 par
value, of CMD Delaware.
(b) CMD Option and Purchase
Plans .
(i) Upon the Effective Date of the
Merger, CMD Delaware shall assume the obligations of CMD under, and
continue, the option and stock purchase plans of CMD for CMD
service providers (the “ Plans ”) and
certain non-plan stock option agreements by and between certain
employees of CMD or its subsidiary. Each outstanding and
unexercised option, other right to purchase, restricted stock unit
or security convertible into, CMD Common Stock issued under the
Plans (a “Plan Right” ) shall become,
subject to the provisions in paragraph (b)(ii) below, an
option, right to purchase, a restricted stock unit or a security
convertible into CMD Delaware’s Common Stock on the basis of
one share of CMD Delaware’s Common Stock for each one share
of CMD Common Stock issuable pursuant to any such Plan Right, on
the same terms and conditions and at an exercise price equal to the
exercise price applicable to any such CMD Plan Right at the
Effective Date of the Merger.
(ii) A number of shares of the CMD
Delaware’s Common Stock shall be reserved for issuance upon
the exercise of Plan Rights granted or to be granted under the
Plans equal to the number of shares of CMD Common Stock so reserved
immediately prior to the Effective Date of the Merger.
(c) CMD Preferred Stock
Rights . Associated with each outstanding CMD common share
is (and associated with each future-issued CMD Common shares will
be) a “ Right ” which, when exercisable,
entitles the registered holder to purchase from CMD one
one-thousandth of a share of no par value Series A Participating
Preferred Stock, at a price of Fifty
3
Dollars ($50.00) per one one-thousandth of a
share, subject to adjustment. The description and terms of the
Rights are set forth in
