EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF TRIQUINT SEMICONDUCTOR, INC.,
A DELAWARE CORPORATION,
AND
TRIQUINT SEMICONDUCTOR, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of February 12, 1997 (the
"Agreement") is between TriQuint Semiconductor, Inc., a Delaware corporation
("TriQuint Delaware"), and TriQuint Semiconductor, Inc., a California
corporation ("TriQuint California"). TriQuint Delaware and TriQuint California
are sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. TriQuint Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 30,000,000
shares, $.001 par value, of which 25,000,000 shares are designated "Common
Stock," and 5,000,000 shares are designated "Preferred Stock." The Preferred
Stock of TriQuint Delaware is undesignated as to series, rights, preferences,
privileges or restrictions. As of February 12, 1997, 100 shares of Common Stock
were issued and outstanding, all of which are held by TriQuint California, and
no shares of Preferred Stock were issued and outstanding.
B. TriQuint California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 30,000,000
shares, no par value, of which 25,000,000 are designated "Common Stock," and
5,000,000 shares are designated "Preferred Stock." The Preferred Stock of
TriQuint California is undesignated as to series, rights, preferences,
privileges or restrictions. As of January 31, 1997, 8,170,772 shares of Common
Stock were issued and outstanding, and no shares of Preferred Stock were issued
and outstanding.
C. The Board of Directors of TriQuint California has determined that, for
the purpose of effecting the reincorporation of TriQuint California in the State
of Delaware, it is advisable and in the best interests of TriQuint California
and its shareholders that TriQuint California merge with and into TriQuint
Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors of TriQuint Delaware and TriQuint
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, TriQuint Delaware and TriQuint 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,
TriQuint California shall be merged with and into TriQuint Delaware (the
"Merger"), the separate existence of TriQuint California shall cease and
TriQuint Delaware shall survive the Merger and shall continue to be governed by
the laws of the State of Delaware, and TriQuint Delaware shall be, and is herein
sometimes referred to as, the "Surviving Corporation," and the name of the
Surviving Corporation shall be TriQuint Semiconductor, Inc.
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 October 1, 1996 and December 19, 1996,
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 TriQuint California shall cease and TriQuint 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 TriQuint California's Boards of Directors, (iii) shall
succeed, without other transfer, to all of the assets, rights, powers and
property of TriQuint 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
TriQuint California in the same manner as if
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TriQuint 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
TriQuint 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 TriQuint 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 TriQuint
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 TRIQUINT CALIFORNIA COMMON STOCK. Upon the Effective Date of the
Merger, each share of TriQuint California Common Stock, no par value, 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 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 TRIQUINT 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 1987 Stock
Incentive Plan and the 1996 Stock Incentive Plan) and all other employee benefit
plans (including without limitation the 1992 Employee Stock Purchase Plan) of
TriQuint California. Each outstanding and unexercised option or other right to
purchase or security convertible into TriQuint 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 TriQuint 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 TriQuint California option,
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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 TriQuint 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 TriQuint California
Common Stock so reserved immediately prior to the Effective Date of the Merger.
3.3 TRIQUINT DELAWARE COMMON STOCK. Upon the Effective Date of the
Merger, each share of Common Stock, $.001 par value, of TriQuint Delaware issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by TriQuint 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 TriQuint
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 TriQuint California Common Stock were converted as herein provided.
Unless and until so surrendered, each outstanding certificate theretofore
representing shares of TriQuint 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 TriQuint 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 TriQuint 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 TriQuint 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 TriQuint 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 TriQuint Delaware that such tax has been paid
or is not payable.
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IV
GENERAL
4.1 COVENANTS OF TRIQUINT DELAWARE. TriQuint 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 TriQuint Delaware of all of the
franchise tax liabilities of TriQuint California;
(c) Take such other actions as may be required by the California
General Corporation Law;
(d) Qualify to do business as a foreign corporation in the State of
Oregon and in connection therewith irrevocably appoint an agent for service
of process as required under the provisions of Section 60.707 of the Oregon
Revised Statutes;
(e) File any and all documents with the Oregon Department of Revenue
necessary for the assumption by TriQuint Delaware of all of the excise tax
liabilities of TriQuint California; and
(f) Take such other actions as may be required by the Oregon Business
Corporation Act.
4.2 FURTHER ASSURANCES. From time to time, as and when required by
TriQuint Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of TriQuint California such deeds and other instruments, and
there shall be taken or caused to be taken by TriQuint Delaware and TriQuint
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 TriQuint
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of TriQuint
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of TriQuint Delaware are fully authorized in the name and
on behalf of TriQuint 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 TriQuint California or TriQuint Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of TriQuint
California or by the sole stockholder of TriQuint Delaware, or by both.
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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.
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.
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IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of TriQuint Delaware and TriQuint
California, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
TRIQUINT SEMICONDUCTOR, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chairman, President and
Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇ ▇.▇. ▇▇▇▇, Executive Vice President,
Finance & Administration, Chief Financial Officer
and Secretary
TRIQUINT SEMICONDUCTOR, INC.
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chairman, President and
Chief Executive Officer
ATTEST:
/S/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
------------------------------------------------
▇▇▇▇▇ ▇.▇. ▇▇▇▇,
Executive Vice President, Finance & Administration,
Chief Financial Officer and Secretary
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TRIQUINT SEMICONDUCTOR, INC.
(Surviving Corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇ certify that:
1. They are the President and the Secretary, respectively, of TriQuint
Semiconductor, Inc., 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 25,000,000 shares of
Common Stock and 5,000,000 shares of Preferred Stock. The Preferred Stock is
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 Beaverton, Oregon on February 12, 1997.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman, Chief
Executive Officer and President
/s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇.▇. ▇▇▇▇, Executive Vice President,
Finance & Administration, Chief Financial
Officer and Secretary
TRIQUINT SEMICONDUCTOR, INC.
(California Corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇ certify that:
1. They are the President and the Secretary, respectively, of TriQuint
Semiconductor, Inc., 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 25,000,000 shares of
Common Stock and 5,000,000 shares of Preferred Stock. The Preferred Stock is
undesignated as to series, rights, preferences or restrictions.
3. There were 8,113,628 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 Beaverton, Oregon on February 12, 1997.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman, Chief
Executive Officer and President
/s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇.▇. ▇▇▇▇, Executive Vice President,
Finance & Administration, Chief Financial
Officer and Secretary
