Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF SPECTRIAN CORPORATION
A DELAWARE CORPORATION,
AND
SPECTRIAN CORPORATION
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of October 3, 1997 (the
"Agreement") is between Spectrian Corporation, a Delaware corporation
("Spectrian Delaware"), and Spectrian Corporation, a California corporation
("Spectrian California"). Spectrian Delaware and Spectrian California are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. Spectrian Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 25,000,000
shares, $.001 par value, of which 20,000,000 shares are designated "Common
Stock," and 5,000,000 shares are designated "Preferred Stock." Of the Preferred
Stock, 20,000 shares are designated Series A Participating Preferred in
connection with Spectrian California's Shareholders' Rights Plan. The remaining
shares of Preferred Stock of Spectrian Delaware is undesignated as to series,
rights, preferences, privileges or restrictions. As of October 3, 1997, 100
shares of Common Stock were issued and outstanding, all of which are held by
Spectrian California, and no shares of Preferred Stock were issued and
outstanding.
B. Spectrian California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 25,000,000
shares, no par value, of which 20,000,000 are designated "Common Stock," and
5,000,000 shares are designated "Preferred Stock." Of the Preferred Stock,
20,000 shares of Preferred Stock are designated Series A Participating Preferred
and the remaining shares of Preferred Stock of Spectrian California is
undesignated as to series, rights, preferences, privileges or restrictions. As
of June 5, 1997, 8,307,161 shares of Common Stock were issued and outstanding,
and no shares of Preferred Stock were issued and outstanding.
C. The Board of Directors of Spectrian California has determined that, for
the purpose of effecting the reincorporation of Spectrian California in the
State of Delaware, it is advisable and in the best interests of Spectrian
California and its shareholders that Spectrian California merge with and into
Spectrian Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors of Spectrian Delaware and Spectrian
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective shareholders and executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Spectrian Delaware and Spectrian California hereby agree, subject
to the terms and conditions hereinafter set forth, as follows:
I
MERGER
1.1. Merger. n accordance with the provisions of this Agreement, the Delaware
General Corporation Law and the California General Corporation Law, Spectrian
California shall be merged with and into Spectrian Delaware (the "Merger"), the
separate existence of Spectrian California shall cease and Spectrian Delaware
shall survive the Merger and shall continue to be governed by the laws of the
State
of Delaware, and Spectrian Delaware shall be, and is herein sometimes referred
to as, the "Surviving Corporation," and the name of the Surviving Corporation
shall be Spectrian Corporation.
1.2. Filing and Effectiveness. The Merger shall become effective when the
following actions shall have been completed:
(a) This Agreement and the Merger was adopted and approved by the
shareholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the California
General Corporation Law on May , 1997 and July 31, 1997, respectively;
(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;
(c) An executed Certificate of Merger or an executed, acknowledged and
certified counterpart of this Agreement meeting the requirements of the
Delaware General Corporation Law shall have been filed with the Secretary of
State of the State of Delaware; and
(d) An executed Certificate of Merger or an executed counterpart of this
Agreement meeting the requirements of the California General Corporation Law
shall have been filed with the Secretary of State of the State of California.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
1.3. Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of Spectrian California shall cease and Spectrian 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 its
and Spectrian California's Boards of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of Spectrian
California in the manner as more fully set forth in Section 259 of the Delaware
General Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations 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 Spectrian California in the same manner as
if Spectrian 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.
II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1. Certificate of Incorporation. The Certificate of Incorporation of
Spectrian 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 Spectrian 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 Spectrian
California immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their respective
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III
MANNER OF CONVERSION OF STOCK
3.1. Spectrian California Common Stock. Upon the Effective Date of the
Merger, each share of Spectrian California Common Stock, no par value, issued
and outstanding immediately prior thereto
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shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be changed and
converted into and exchanged for one fully paid and nonassessable share of
Common Stock, $.001 par value, of the Surviving Corporation.
3.2. Spectrian California Options and Stock Purchase Rights. Upon the
Effective Date of the Merger, the Surviving Corporation shall assume and
continue the stock option plans (including without limitation the 1994 Stock
Option Plan and the 1994 Director Option Plan) and all other employee benefit
plans (including without limitation the 1994 Employee Stock Purchase Plan) of
Spectrian California. Each outstanding and unexercised option or other right to
purchase or security convertible into Spectrian California Common Stock shall
become an option or right to purchase or a security convertible into the
Surviving Corporation's Common Stock on the basis of one share of the Surviving
Corporation's Common Stock for each share of Spectrian California Common Stock
issuable pursuant to any such option, stock purchase right or convertible
security, on the same terms and conditions and at an exercise price per share
equal to the exercise price applicable to any such Spectrian California option,
stock purchase right or convertible security at the Effective Date of the
Merger. Except as set forth in Section 3.3, there are no options, purchase
rights for or securities convertible into Preferred Stock of Spectrian
California.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, stock purchase rights or
convertible securities equal to the number of shares of Spectrian California
Common Stock so reserved immediately prior to the Effective Date of the Merger.
3.3 Spectrian California Preferred Share Purchase Rights. Upon the Effective
Date of the Merger, the Surviving corporation shall assume and convert the
Series A Preferred Stock Purchase Rights declared and issued by Spectrian
California on March 21, 1997 and the rights and obligations of Spectrian
California pursuant to the Amended and Restated Preferred Share Rights Agreement
dated as of January 15, 1997 by and among Spectrian California and ▇▇▇▇▇ ▇▇▇▇▇▇
Shareholder Services LLC (the "Rights Agreement"). The Merger shall not be
deemed a "Triggering Event" as such term is defined in the Rights Agreement.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of stock purchase rights and convertible
securities equal to the number of shares of Spectrian California Common Stock so
reserved immediately prior to the Effective Date of the Merger.
3.4 Spectrian Delaware Common Stock. Upon the Effective Date of the Merger,
each share of Common Stock, $.001 par value, of Spectrian Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by Spectrian Delaware, the holder of such shares or any other person,
be canceled and returned to the status of authorized but unissued shares.
3.5 Exchange of Certificates. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of Spectrian California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services, Inc. as exchange agent (the
"Exchange Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of the
Surviving Corporation's Common Stock into which such holders' shares of
Spectrian California Common Stock were converted as herein provided. Unless and
until so surrendered, each outstanding certificate theretofore representing
shares of Spectrian California Common Stock shall be deemed for all purposes to
represent the number of whole shares of the Surviving Corporation's Common Stock
into which such shares of Spectrian California Common Stock were converted in
the Merger.
The registered owner on the books and records of the Surviving Corporation or
the Exchange Agent of any shares of stock represented by such outstanding
certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or the Exchange Agent, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other distributions upon the
shares of Common Stock of the Surviving Corporation represented by such
outstanding certificate as provided above.
Each certificate representing Common Stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of
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Spectrian California so converted and given in exchange therefor, unless
otherwise determined by the Board of Directors of the Surviving Corporation in
compliance with applicable laws.
If any certificate for shares of Spectrian Delaware stock is to be issued in
a name other than that in which the certificate surrendered in exchange therefor
is registered, it shall be a condition of issuance thereof that the certificate
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and that the person requesting
such transfer pay to Spectrian Delaware or the Exchange Agent any transfer or
other taxes payable by reason of the issuance of such new certificate in a name
other than that of the registered holder of the certificate surrendered or
establish to the satisfaction of Spectrian Delaware that such tax has been paid
or is not payable.
IV
GENERAL
4.1. Covenants of Spectrian Delaware. Spectrian Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California General Corporation Law;
(b) File any and all documents with the California Franchise Tax Board
necessary for the assumption by Spectrian Delaware of all of the franchise
tax liabilities of Spectrian California;
(c) Execute concurrently Recourse Obligations Guaranty and the
Environmental Indemnity pursuant to Section 1.11(A)(v) of the March 1997 Deed
of Trust by Gibraltar Court Associates LLC to Investors Bancor for the
benefit of Fremont Loan & Investment; and
(d) Take such other actions as may be required by the California General
Corporation Law.
4.2. Further Assurances. From time to time, as and when required by Spectrian
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of Spectrian California such deeds and other instruments, and there
shall be taken or caused to be taken by Spectrian Delaware and Spectrian
California such further and other actions, as shall be appropriate or necessary
in order to vest or perfect in or conform of record or otherwise by Spectrian
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Spectrian
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of Spectrian Delaware are fully authorized in the name
and on behalf of Spectrian California or otherwise to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
4.3. Abandonment. At any time before the filing of this Agreement with the
Secretary of State of the State of Delaware, this Agreement may be terminated
and the Merger may be abandoned for any reason whatsoever by the Board of
Directors of either Spectrian California or Spectrian Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of Spectrian
California or by the sole stockholder of Spectrian Delaware, or by both.
4.4. Amendment. The Boards of Directors of the Constituent Corporations may
amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretaries of State of the States of
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the shareholders of either Constituent Corporation
shall not: (1) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on conversion of all or
any of the shares of any class or series thereof of such Constituent
Corporation, (2) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger, or (3) alter or change
any of the terms and conditions of this Agreement if such alteration or change
would adversely affect the holders of any class of shares or series thereof of
such Constituent Corporation.
4.5. Registered Office. The registered office of the Surviving Corporation in
the State of Delaware is located at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, in the City of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County of New Castle, and The
Corporation Trust Company is the registered agent of the Surviving Corporation
at such address.
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4.6. Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and copies thereof will be furnished to any
shareholder of either Constituent Corporation, upon request and without cost.
4.7. Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4.8. Counterparts. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, this Agreement, having first been approved by resolutions
of the Boards of Directors of Spectrian Delaware and Spectrian California, is
hereby executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
SPECTRIAN CORPORATION
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
ATTEST: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President,
Finance & Administration, Chief Financial
Officer and Secretary
SPECTRIAN CORPORATION
a California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
ATTEST: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Executive Vice President, Finance &
Administration, Chief Financial Officer
and Secretary
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SPECTRIAN CORPORATION
(CALIFORNIA CORPORATION)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ certify that:
1. They are the President and the Secretary, respectively, of Spectrian
Corporation, a corporation organized under the laws of the State of California.
2. The corporation has authorized two classes of stock, designated "Common
Stock" and "Preferred Stock". There are authorized 20,000,000 shares of Common
Stock and 5,000,000 shares of Preferred Stock. Of the Preferred Stock, 20,000
shares of Preferred Stock is designated Series A Participating Preferred and the
remaining shares of Preferred Stock are undesignated as to series, rights,
preferences or restrictions.
3. There were 8,307,161 shares of Common Stock, and no shares of Preferred
Stock, outstanding as of the record date (the "Record Date") of the
shareholders' meeting at which the Agreement and Plan of Merger attached hereto
(the "Merger Agreement") was approved. All shares of Common stock outstanding
were entitled to vote on the merger.
4. The principal terms of the Merger Agreement were approved by the Board of
Directors and by the vote of a number of shares of each class of stock which
equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes entitled to be
cast by holders of Common Stock outstanding as of the Record Date, voting as a
single class.
6. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ further declare under penalty of
perjury under the laws of the State of California that each has read the
foregoing certificate and knows the contents thereof and that the same is true
of their own knowledge.
Executed in Sunnyvale, California on October 3, 1997.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Chief Executive Officer and President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Executive Vice President, Finance &
Administration, Chief Financial Officer
and Secretary
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SPECTRIAN CORPORATION
(SURVIVING CORPORATION)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ certify that:
1. They are the President and the Secretary, respectively, of Spectrian
Corporation, a corporation organized under the laws of the State of Delaware.
2. The corporation has authorized two classes of stock, designated "Common
Stock" and "Preferred Stock". There are authorized 20,000,000 shares of Common
Stock and 5,000,000 shares of Preferred Stock. Of the Preferred Stock, 20,000
shares of Preferred Stock is designated Series A Participating Preferred and the
remaining shares of Preferred Stock are undesignated as to series, rights,
preferences or restrictions.
3. There were 100 shares of Common Stock outstanding and entitled to vote on
the Agreement and Plan of Merger attached hereto (the "Merger Agreement"). There
were no shares of Preferred Stock outstanding.
4. The principal terms of the Merger Agreement were approved by the Board of
Directors and by the vote of a number of shares of each class of stock which
equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes entitled to be
cast by holders of outstanding shares of Common Stock.
6. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ further declare under penalty of
perjury under the laws of the State of Delaware that each has read the foregoing
certificate and knows the contents thereof and that the same is true of their
own knowledge.
Executed in Sunnyvale, California on October 3, 1997.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Chief Executive Officer and President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Executive Vice President, Finance &
Administration, Chief Financial Officer
and Secretary
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