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EXHIBIT 3.2
AGREEMENT AND PLAN OF MERGER
OF CIRRUS LOGIC, INC.
A DELAWARE CORPORATION
AND
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of February 17 ,1999, (the
"Agreement") is between Cirrus Logic, Inc., a Delaware corporation
("Cirrus-Delaware") and Cirrus Logic, Inc., a California corporation
("Cirrus-California"). Cirrus-Delaware and Cirrus-California are sometimes
referred to herein as the "Constituent Corporations."
R E C I T A L S
A. Cirrus-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 285,000,000
shares, 280,000,000 of which are designated "Common Stock," $.001 par value and
5,000,000 of which are designated "Preferred Stock", $.001 par value. As of the
date of this Agreement of Merger, 1,000 shares of Common Stock were issued and
outstanding, all of which were held by Cirrus-California. No shares of Preferred
were outstanding.
B. Cirrus-California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 145,000,000
shares, 140,000,000 of which are designated "Common Stock", no par value and
5,000,000 of which are designated "Preferred Stock", no par value. As of the
date of this Agreement of Merger 60,077,169 shares of Common Stock were issued
and outstanding. No shares of Preferred Stock were issued and outstanding.
C. The Board of Directors of Cirrus-California has determined that, for
the purpose of effecting the reincorporation of Cirrus-California in the State
of Delaware, it is advisable and in the best interests of Cirrus-California that
Cirrus-California merge with and into Cirrus-Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of Cirrus-Delaware and
Cirrus-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.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Cirrus-Delaware and Cirrus-California hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
I. MERGER
I.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
Cirrus-California shall be merged with and into Cirrus-Delaware (the "Merger"),
the separate existence of Cirrus-California shall cease and Cirrus-Delaware
shall be, and is herein sometimes referred as, the "Surviving Corporation", and
the name of the Surviving Corporation shall be Cirrus Logic, Inc.
I.2 Filing and Effectiveness. The Merger shall become effective when
the following actions shall have been completed:
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(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 General Corporation Law;
(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 Agreement and Plan of Merger
meeting the requirements of the Delaware General Corporation Law shall have been
filed with the Secretary of State of the State of Delaware; and
The date and time when the Merger shall become
effective, as aforesaid, is herein called the "Effective Date of the Merger."
I.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of Cirrus-California shall cease and Cirrus-Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior the Effective Date of the
Merger, (ii) shall be subject to all actions previously taken by its and
Cirrus-California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Cirrus-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 Cirrus-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 Cirrus-California
in the same manner as if Cirrus-Delaware had itself incurred them, all as more
fully provided under the applicable provisions of the Delaware General
Corporation Law and the California Corporations Code.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
II.1 Certificate of Incorporation. The Certificate of Incorporation of
Cirrus-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.
II.2 Bylaws. The Bylaws of Cirrus-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.
II.3 Directors and Officers. The directors and officers of
Cirrus-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, the Certificate of Incorporation of the Surviving Corporation or the Bylaws
of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
III.1 Cirrus-California Common Shares. Upon the Effective Date of the
Merger, each share of Cirrus-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 converted into and exchanged for one fully paid and
nonassessable share of Common Stock, no par value, of the surviving Corporation.
No fractional share interests of Surviving Corporation Common Stock shall be
issued. In lieu thereof, any fractional share interests to which a holder would
otherwise be entitled shall be aggregated.
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III.2 Cirrus-California Options, Stock Purchase Rights and Convertible
Securities.
(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of Cirrus-California under, and
continue, the option plans (including without limitation the Amended 1987 Stock
Option Plan, the Amended 1989 Employee Stock Purchase Plan, and the Amended 1990
Directors' Stock Option Plan, the Amended 1996 Stock Plan, all other employee
benefit plans, and the 6% Convertible Subordinated Notes due December 15, 2003.
Each outstanding and unexercised option, other right to purchase, or security
convertible into Cirrus-California Common Stock (a "Right"') shall become,
subject to the provisions in paragraph (c) hereof, an option, 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 one
share of Cirrus-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 Cirrus-California Right at the Effective Date of
the Merger. This paragraph 3.2(a) shall not apply to Cirrus-California Common
Stock which is subject to paragraph 3.1.
(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, including the 6% Convertible
Subordinated Notes due December 15, 2003, equal to true number of shares of
Cirrus-California Common Stock so reserved immediately prior to the Effective
Date of the Merger.
(c) The assumed Rights shall not entitle any holder thereof to a
fractional share upon exercise or conversion. In addition, no "additional
benefits" (within the meaning of Section 424(a)(2) of the Internal Revenue Code
of 1986, as amended) shall be accorded to the optionees pursuant to the
assumption of their options.
III.3 Cirrus-Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, $.001 par value, of Cirrus-Delaware issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by Cirrus-Delaware, the holder of such shares or any other
person, be cancelled and returned to the status of authorized but unissued
shares.
III.4 Exchange of Certificates. After the Effective Date of the merger,
each holder of an outstanding certificate representing shares of
Cirrus-California Common Stock may be asked to surrender the same for
cancellation to BankBoston N.A. (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,
as the case may be, into which the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate theretofore
representing shares of Cirrus-California Common Stock shall be deemed for all
purposes to represent the number of shares of the Surviving Corporation's Common
Stock, respectively, into which such shares of Cirrus-California Common Stock,
as the case may be, were converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any 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 Cirrus-California so
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converted and given in exchange therefore, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws.
If any certificate for shares of the Surviving Corporation's 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
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 the Surviving
Corporation that such tax has been paid or is not payable.
IV. GENERAL
IV. 1 Covenants of Cirrus-Delaware. Cirrus-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 Cirrus-Delaware of all of the franchise
tax liabilities of Cirrus-California.
(c) Take such other actions as may be required by the California
General Corporation Law.
IV.2 Further Assurances. From time to time, as and when required by
Cirrus-Delaware or by its successors or assigns, there shall be executed an
delivered on behalf of Cirrus-California such deeds and other instruments, and
there shall be taken or caused to be taken by it 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 Cirrus-Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Cirrus-California and otherwise to carry out the purposes of
this Agreement, and the officers and directors of Cirrus-Delaware are fully
authorized in the name and on behalf of Cirrus-California or otherwise to take
any and all such action and to execute and deliver any and all such deeds and
other instruments.
IV.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 Cirrus-California or
Cirrus-Delaware, or of both, notwithstanding the approval of this Agreement by
the shareholders of Cirrus-California or by the sole stockholder of
Cirrus-Delaware, or by both.
IV.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 Secretary of State of the States of
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the stockholders 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
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conditions of this Agreement if such alternation or change would adversely
affect the holders of any class or series of capital stock of any Constituent
Corporation.
IV.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
of ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and The Corporation Trust Company is the registered
agent of the Surviving Corporation at such address.
IV.6 Agreement. Executed copies of this Agreement will be on file at
the principal place of business at the Surviving Corporation at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
IV.7 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with the governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
IV.8 FIRPTA Notification.
(a) On the Effective Date of the Merger, Cirrus-California Shall
Deliver to Cirrus-Delaware, as agent for the shareholders of Cirrus-California,
a properly executed statement (the "Statement") substantially in the form
attached hereto as Exhibit A. Cirrus-Delaware shall retain the Statement for a
period of not less than seven years and shall, upon request, provide a copy
thereof to any person that was a shareholder of Cirrus-California immediately
prior to the Merger. In consequence of the approval of the Merger by the
shareholders of Cirrus-California, (i) such shareholders shall be considered to
have requested that the Statement be delivered to Cirrus-Delaware as their agent
and (ii) Cirrus-Delaware shall be considered to have received a copy of the
statement at the request of the Cirrus-California shareholders for purposes of
satisfying Cirrus-Delaware's obligations under Treasury Regulation Section
1.1445-2(c)(3).
(d) Cirrus-California shall deliver to the Internal Revenue
Service a notice regarding the Statement in accordance with the requirements of
Treasury Regulation Section 1.897-2(h)(2).
IV.9 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 the
resolutions of the Board of Directors of Cirrus-Delaware and Cirrus-California
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
Cirrus Logic, Inc.
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President, Chief Operating
Officer and Chief Executive
Officer
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Secretary
Cirrus Logic, Inc.
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President, Chief Operating
Officer and Chief Executive
Officer
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Cirrus-Delaware and Cirrus-California
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
Cirrus Logic, Inc.
a Delaware corporation
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President, Chief Operating
Officer and Chief Executive
Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Secretary
Cirrus Logic, Inc.
a California corporation
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President, Chief Operating
Officer and Chief Executive
Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
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CIRRUS LOGIC, INC.
(California Corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ certify that:
1. They are the President and the Secretary, respectively, of Cirrus
Logic, 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". Cirrus Logic, Inc. has an authorized
capital of 145,000,000 shares, no par value, of which 140,000,000 shares are
designated "Common Stock," and 5,000,000 shares are designated "Preferred Stock"
of which 1,500,000 shares are designated Series A Preferred Stock.
3. There were 60,077,169 shares of Common Stock outstanding and no
shares of Preferred Stock outstanding as of the date (the "Record Date") of
Action by Written Consent of Shareholders pursuant to which the Agreement and
Plan of Merger attached hereto (the "Merger Agreement") was approved. All shares
of capital 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 all classes of capital 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 Palo Alto, California on February 17, 1999.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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CIRRUS LOGIC, INC.
(Surviving Corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ certify that:
1. They are the President and the Secretary, respectively, of Cirrus
Logic, 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". Cirrus Logic, Inc. has an authorized
capital of 285,000,000 shares, no par value, of which 280,000,000 shares are
designated "Common Stock," and 5,000,000 shares are designated "Preferred Stock"
of which 1,500,000 shares are designated Series A Preferred Stock.
3. There were 1,000 shares of Common Stock outstanding and no shares of
Preferred Stock outstanding as of the date (the "Record Date") of Action by
Written Consent of Stockholders pursuant to which the Agreement and Plan of
Merger attached hereto (the "Merger Agreement") was approved. All shares of
capital 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 all classes of capital 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 Palo Alto, California on February 17, 1999.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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