EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF LINEAR TECHNOLOGY CORPORATION
(a Delaware corporation)
AND
LINEAR TECHNOLOGY CORPORATION
(a California corporation)
THIS AGREEMENT AND PLAN OF MERGER dated as of January 2, 2001 (the
"Agreement") is between Linear Technology Corporation, a Delaware corporation
("Linear Delaware"), and Linear Technology Corporation, a California corporation
("Linear California"). Linear Delaware and Linear California are sometimes
referred to herein as the "Constituent Corporations."
RECITALS
A. Linear Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 2,002,000,000
shares, 2,000,000,000 of which are designated "Common Stock," par value $0.001
per share, and 2,000,000 of which are designated "Preferred Stock," par value
$0.001 per share. The Preferred Stock of Linear Delaware is undesignated as to
series, rights, preferences, privileges or restrictions. As of November 30,
2000, 1,000 shares of Common Stock were issued and outstanding, all of which
were held by Linear California, and no shares of Preferred Stock were issued and
outstanding.
B. Linear California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 482,000,000
shares, 480,000,000 of which are designated "Common Stock," no par value, and
2,000,000 of which are designated "Preferred Stock," no par value. The Preferred
Stock of Linear California is undesignated as to series, rights, preferences,
privileges or restrictions. As of October 27, 2000, 316,719,990 shares of Common
Stock and no shares of Preferred Stock were issued and outstanding.
C. The Board of Directors of Linear California has determined that, for
the purpose of effecting the reincorporation of Linear California in the State
of Delaware, it is advisable and in the best interests of Linear California and
its shareholders that Linear California merge with and into Linear Delaware upon
the terms and conditions herein provided.
D. The respective Boards of Directors of Linear Delaware and Linear
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective sole stockholder and shareholders and
executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Linear Delaware and Linear California hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
I. MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
Linear California shall be merged with and into Linear Delaware (the "Merger"),
the separate existence of Linear California shall cease and Linear Delaware
shall survive the Merger and shall continue to be governed by the laws of the
State of Delaware, and Linear Delaware shall be, and is herein sometimes
referred to as, the "Surviving Corporation." The name of the Surviving
Corporation shall be "Linear Technology Corporation."
1.2 Filing and Effectiveness. The Merger shall become effective when
the following actions shall have been completed:
(a) This Agreement and Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the California
Corporations Code;
(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; and
(c) An executed 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.
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 Linear California shall cease, and Linear 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
Linear California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Linear California
in the manner more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of Linear Delaware 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 Linear California
in the same manner as if Linear 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
Linear 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.
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2.2 Bylaws. The Bylaws of Linear 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 Linear
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 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 Linear California Common Stock. Upon the Effective Date of the
Merger, each share of Linear 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 shares or any other person,
be converted into and exchanged for one (1) fully paid and nonassessable share
of Common Stock, par value $0.001 per share, of the Surviving Corporation.
3.2 Linear California Options, Stock Purchase Rights and Convertible
Securities.
(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume and continue the stock option plans and all other
employee benefit plans of Linear California. Each outstanding and unexercised
option or other right to purchase or security convertible into Linear 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 Linear
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
Linear California option, stock purchase right or convertible security at the
Effective Date of the Merger. There are no options, purchase rights for or
securities convertible into Preferred Stock of Linear California.
(b) A number of shares of the Surviving Corporation's Common
Stock shall be reserved for issuance upon the exercise of options, stock
purchase rights and convertible securities equal to the number of shares of
Linear California Common Stock so reserved immediately prior to the Effective
Date of the Merger.
3.3 Linear Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, par value $0.001 per share, of Linear
Delaware issued and outstanding immediately prior thereto shall, by virtue of
the Merger and without any action by Linear Delaware, the holder of such shares
or any other person, be canceled and returned to the status of authorized but
unissued shares.
3.4 Exchange of Certificates. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of Linear
California Common Stock may, at such stockholder's option, but need not,
surrender the same for cancellation to the transfer agent for the Linear
California Common Stock, as exchange agent (the "Exchange Agent"), and each such
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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 the surrendered shares were converted as herein
provided. Unless and until so surrendered, each outstanding certificate
theretofore representing shares of Linear California Common Stock shall be
deemed for all purposes to represent the number of shares of the Surviving
Corporation's Common Stock into which such shares of Linear 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 Linear California so
converted and given in exchange therefore, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws, or other such additional legends as agreed upon by the holder and the
Surviving Corporation.
If any certificate for shares of Linear 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 comply with
applicable securities laws and that the person requesting such transfer pay to
Linear Delaware or the Exchange Agent any transfer or other taxes payable by
reason of 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 Linear Delaware that such tax has been paid or is not payable.
IV. GENERAL
4.1 Covenants of Linear Delaware. Linear 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 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 Linear Delaware of all of the
franchise tax liabilities of Linear California;
(c) file an executed counterpart of this Agreement meeting the
requirements of the California General Corporation Law with the Secretary of
State of the State of California; and
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(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
Linear Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Linear California such deeds and other instruments, and
there shall be taken or caused to be taken by Linear Delaware and Linear
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 Linear
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Linear
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of Linear Delaware are fully authorized in the name and
on behalf of Linear 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 Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Linear California or of Linear
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of Linear California or by the sole stockholder of Linear 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 with
the Secretaries of State of the States of Delaware and California, provided that
an amendment made subsequent to the adoption of this Agreement by the
stockholders of either Constituent Corporation shall not, unless approved by the
stockholders as required by law: (a) 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; (b) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger; or (c)
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 or series
of capital stock of any Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ of ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Incorporating Services, Ltd. is the
registered agent of the Surviving Corporation at such address.
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 stockholder 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.
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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 the
resolutions of the Board of Directors of Linear Technology Corporation, a
Delaware corporation, and Linear Technology Corporation, a California
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
LINEAR TECHNOLOGY CORPORATION
a Delaware corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Chairman and Chief Executive Officer
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Finance and Chief Financial Officer
LINEAR TECHNOLOGY CORPORATION
a California corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Chairman and Chief Executive Officer
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Finance and Chief Financial Officer
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LINEAR TECHNOLOGY CORPORATION
(a California corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇▇▇▇▇▇▇ certify that:
1. They are the Chairman and Chief Executive Officer, and the Vice
President, Finance and Chief Financial Officer, respectively, of Linear
Technology 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," respectively. There are authorized
480,000,000 shares of Common Stock and 2,000,000 shares of Preferred Stock. The
Preferred Stock is undesignated as to series, rights, preferences or
restrictions.
3. There were 316,515,460 shares of Common Stock and no shares of
Preferred Stock outstanding as of September 13, 2000 (the "Record Date") and
entitled to vote at the shareholders' meeting at which the Agreement and Plan of
Merger (the "Merger Agreement") attached hereto was approved.
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 they have read
the foregoing certificate and know the contents thereof and that the same is
true of their own knowledge.
Executed in Milpitas, California on December 22, 2000.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Chairman and Chief Executive Officer
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Finance and Chief Financial Officer
LINEAR TECHNOLOGY CORPORATION
(a Delaware corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇▇▇▇▇▇▇ certify that:
1. They are the Chairman and Chief Executive Officer, and the Vice
President, Finance and Chief Financial Officer, respectively, of Linear
Technology 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," respectively. There are authorized
2,000,000,000 shares of Common Stock and 2,000,000 shares of Preferred Stock.
The Preferred Stock is undesignated as to series, rights, preferences or
restrictions.
3. There are 1,000 shares of Common Stock outstanding and entitled to
vote on the Agreement and Plan of Merger (the "Merger Agreement") attached
hereto. There are 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 100% of the shares outstanding and
entitled to vote on the Merger Agreement.
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 they have read
the foregoing certificate and know the contents thereof and that the same is
true of their own knowledge.
Executed in Milpitas, California on December 22, 2000.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Chairman and Chief Executive Officer
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Finance and Chief Financial Officer