EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF OMNIVISION TECHNOLOGIES, INC.
A DELAWARE CORPORATION
AND
OMNIVISION TECHNOLOGIES, INC.
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of March __, 2000, (the "Agreement")
is between OmniVision Technologies, Inc., a Delaware corporation ("OmniVision-
Delaware") and OmniVision Technologies, Inc., a California corporation
("OmniVision-California"). OmniVision-Delaware and OmniVision-California are
sometimes referred to herein as the "Constituent Corporations."
R E C I T A L S
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A. OmniVision-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 112,783,336
shares, 100,000,000 of which are designated "Common Stock", $0.001 par value,
and 12,783,336 of which are designated "Preferred Stock", $0.001 par value. Of
such authorized shares of Preferred Stock, 4,450,003 shares are designated
"Series A Preferred Stock," 4,000,000 shares are designated "Series B Preferred
Stock" and 4,333,333 shares are designated "Series C Preferred Stock." As of the
date of this Agreement of Merger, 1,000 shares of Common Stock are issued and
outstanding, all of which were held by OmniVision-California. No shares of
Preferred Stock are outstanding.
B. OmniVision-California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital of
32,783,336 shares, 20,000,000 of which are designated "Common Stock", no par
value and 12,783,336 of which are designated "Preferred Stock", no par value. Of
such authorized shares of Preferred Stock, 4,450,003shares are designated
"Series A Preferred Stock," and 4,000,000 shares are designated "Series B
Preferred Stock" and 4,333,333 shares are designated "Series C Preferred Stock."
As of the record date of the solicitation of the consent of shareholders at
which this Agreement of Merger was approved, 3,936,550 shares of Common Stock,
4,300,001 shares of Series A Preferred Stock, 3,671,668 shares of Series B
Preferred Stock and 4,333,332 shares of Series C Preferred Stock were issued and
outstanding.
C. The Board of Directors of OmniVision-California has determined that,
for the purpose of effecting the reincorporation of OmniVision-California in the
State of Delaware, it is advisable and in the best interests of OmniVision-
California that OmniVision-California merge with and into OmniVision-Delaware
upon the terms and conditions herein provided.
D. The respective Boards of Directors of OmniVision-Delaware and
OmniVision-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.
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NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, OmniVision-Delaware and OmniVision-California hereby agree,
subject to the terms and conditions hereinafter set forth, as follows:
1. MERGER
(a) Merger. In accordance with the provisions of this Agreement, the
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Delaware General Corporation Law and the California General Corporation Law,
OmniVision-California shall be merged with and into OmniVision-Delaware (the
"Merger"), the separate existence of OmniVision-California shall cease and
OmniVision-Delaware shall be, and is herein sometimes referred as, the
"Surviving Corporation", and the name of the Surviving Corporation shall be
OmniVision Networks Corporation.
(b) Filing and Effectiveness. The Merger shall be completed when
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the following actions shall have been completed:
(i) This Agreement and Merger was 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 on March__, 2000 and March__, 2000, respectively;
(ii) 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;
(iii) 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
(iv) An executed Certificate of Merger or an executed, acknowledged
and certified counterpart of this Agreement meeting the requirements of the
California Corporations Code shall have been filed with the Secretary of State
of the State of California.
Pursuant to Section 251 of the Delaware General Corporation Law and
Section 1168 of the California Corporations Code, the date and time when the
Merger shall become effective, shall be the date upon which subsections (a), (b)
and (c) of this Section 1.2 are satisfied and as to OmniVision-California on the
day subsection (d) is satisfied, is herein called the "Effective Date of the
Merger."
(c) Effect of the Merger. Upon the Effective Date of the Merger, the
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separate existence of OmniVision-California shall cease and OmniVision-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 OmniVision-California's Board of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of OmniVision-
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 OmniVision-Delaware as constituted
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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
OmniVision-California in the same manner as if OmniVision-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.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
(a) Certificate of Incorporation. The Certificate of Incorporation of
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OmniVision-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.
(b) Bylaws. The Bylaws of OmniVision-Delaware as in effect immediately
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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.
(c) Directors and Officers. The directors and officers of OmniVision-
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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.
3. MANNER OF CONVERSION OF STOCK
(a) OmniVision-California Common Shares. Upon the Effective Date of
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the Merger, each share of OmniVision-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 (1) fully
paid and nonassessable share of Common Stock, $.001 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.
(b) OmniVision-California Preferred Shares.
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(i) Upon the Effective Date of the Merger, each share of
Series A Preferred, Series B Preferred, and Series C Preferred Stock of
OmniVision-California, no par value, issued and outstanding immediately prior to
the Merger, which shares are convertible into such number of shares of
OmniVision-California Common Stock as set forth in the OmniVision-California
Restated Articles of Incorporation, as amended, 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 or exchanged for one (1) fully
paid and nonassessable share of Series A Preferred, Series B Preferred and
Series C Preferred Stock of the Surviving Corporation, $0.001 par value,
respectively, having such rights, preferences and privileges as set forth in the
Certificate of Incorporation of the Surviving Corporation, which share of
Preferred Stock shall be convertible into the same number of shares of the
Surviving Corporation's Common Stock, $0.001 par value, as such share of
OmniVision-
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California Preferred Stock was so convertible into immediately prior to the
Effective Date of the Merger, subject to adjustment pursuant to the terms of the
Certificate of Incorporation of the Surviving Corporation.
(c) OmniVision-California Options, Warrants, Stock Purchase Rights and
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Convertible Securities.
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(i) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of OmniVision-California under, and
continue, the 1995 Stock Option Plan ("Stock Option Plan"),and all other
employee benefit plans of OmniVision-California. Each outstanding and
unexercised option, warrant, other right to purchase, or security convertible
into, OmniVision-California Common Stock or OmniVision-California Preferred
Stock (a "Right") shall become, subject to the provisions in paragraph (c)
hereof, an option, warrant, right to purchase or a security convertible into the
Surviving Corporation's Common Stock or Preferred Stock, respectively, on the
basis of one (1) share of the Surviving Corporation's Common Stock or Preferred
Stock, as the case may be, for each one share of OmniVision-California Common
Stock or Preferred Stock, as the case may be, 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 OmniVision-California Right at the
Effective Date of the Merger. This paragraph 3.3(a) shall not apply to
OmniVision-California Common Stock or Preferred Stock. Such Common Stock and
Preferred Stock are subject to paragraph 3.1 and 3.2, respectively, hereof.
(ii) A number of shares of the Surviving Corporation's Common
Stock and Preferred Stock shall be reserved for issuance upon the exercise of
options, warrants, stock purchase rights and convertible securities equal to the
number of shares of OmniVision-California Common Stock and OmniVision-California
Preferred Stock so reserved immediately prior to the Effective Date of the
Merger.
(iii) The assumed Rights shall not entitle any holder thereof to
a fractional share upon exercise or conversion (unless the holder was entitled
to a fractional interest immediately prior to the Merger). In lieu thereof, any
fractional share interests to which a holder of an assumed Right (other than an
option issued pursuant to OmniVision-California's 1995 Stock Option Plan) would
otherwise be entitled upon exercise or conversion shall be aggregated (but only
with other similar Rights which have the same per share terms). To the extent
that after such aggregation, the holder would still be entitled to a fractional
share with respect thereto upon exercise or conversion, the holder shall be
entitled upon the exercise or conversion of all such assumed Rights pursuant to
their terms (as modified herein), to one full share of Common Stock or Preferred
Stock in lieu of such fractional share. With respect to each class of such
similar Rights, no holder will be entitled to more than one full share in lieu
of a fractional share upon exercise or conversion.
Notwithstanding the foregoing, with respect to options issued under
the OmniVision-California 1995 Stock Option Plan that are assumed in the Merger,
the number of shares of Common Stock to which the holder would be otherwise
entitled upon exercise of each such assumed option following the Merger shall be
rounded down to the nearest whole number and the exercise price shall be rounded
up to the nearest whole cent. In addition, no "additional benefits" (within the
meaning of
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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.
(d) OmniVision-Delaware Common Stock. Upon the Effective Date of the
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Merger, each share of Common Stock, $.001 par value, of OmniVision-Delaware
issued and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by OmniVision-Delaware, the holder of such shares or any
other person, be canceled and returned to the status of authorized but unissued
shares.
(e) Exchange of Certificates. After the Effective Date of the Merger,
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each holder of an outstanding certificate representing shares of OmniVision-
California Common Stock or Preferred Stock may be asked to surrender the same
for cancellation to an exchange agent, whose name will be delivered to holders
prior to any requested exchange (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 or
Preferred 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 OmniVision-California Common Stock or
Preferred Stock shall be deemed for all purposes to represent the number of
shares of the Surviving Corporation's Common Stock or Preferred Stock,
respectively, into which such shares of OmniVision-California Common Stock or
Preferred 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 or
Preferred Stock of the Surviving Corporation represented by such outstanding
certificate as provided above.
Each certificate representing Common Stock or Preferred 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
OmniVision-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.
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.
4. GENERAL
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(a) Covenants of OmniVision-Delaware. OmniVision-Delaware covenants
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and agrees that it will, on or before the Effective Date of the Merger:
(i) 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.
(ii) File any and all documents with the California Franchise
Tax Board necessary for the assumption by OmniVision-Delaware of all of the
franchise tax liabilities of OmniVision-California.
(iii) Take such other actions as may be required by the
California General Corporation Law.
(b) Further Assurances. From time to time, as and when required by
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OmniVision-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of OmniVision-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 OmniVision-Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of OmniVision-California and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of OmniVision-Delaware are fully authorized in the name and on behalf
of OmniVision-California or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
(c) Abandonment. At any time before the Effective Date of the Merger, this
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Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either OmniVision-California or of
OmniVision-Delaware, or of both, notwithstanding the approval of this Agreement
by the shareholders of OmniVision-California or by the sole stockholder of
OmniVision-Delaware, or by both.
(d) Amendment. The Boards of Directors of the Constituent Corporations may
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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 State of
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 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.
(e) Registered Office. The registered office of the Surviving Corporation
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in the State of Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx
Xxxxxx, XX 00000 and The Corporation Trust Company is the registered agent of
the Surviving Corporation at such address.
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(f) Agreement. Executed copies of this Agreement will be on file at the
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principal place of business of the Surviving Corporation at 000 Xxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
(g) Governing Law. This Agreement shall in all respects be construed,
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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.
(h) FIRPTA Notification.
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(i) On the Effective Date of the Merger, OmniVision-California
shall deliver to OmniVision-Delaware, as agent for the shareholders of
OmniVision-California, a properly executed statement (the "Statement")
substantially in the form attached hereto as Exhibit A. OmniVision-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
OmniVision-California immediately prior to the Merger. In consequence of the
approval of the Merger by the shareholders of OmniVision-California, (i) such
shareholders shall be considered to have requested that the Statement be
delivered to OmniVision-Delaware as their agent and (ii) OmniVision-Delaware
shall be considered to have received a copy of the Statement at the request of
the OmniVision-California shareholders for purposes of satisfying OmniVision-
Delaware's obligations under Treasury Regulation Section 1.1445-2(c)(3).
(ii) OmniVision-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).
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of OmniVision-Delaware and OmniVision-
California is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
OMNIVISION TECHNOLOGIES, INC.
a California corporation
By: /s/ Xxxx Hong
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Xxxx Hong, President
and Chief Executive Officer
ATTEST:
/s/ Xxxxxxx Xx
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Xxxxxxx Xx
Secretary
OMNIVISION TECHNOLOGIES, INC.
a Delaware corporation
By: /s/ Xxxx Hong
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Xxxx Hong, President
and Chief Executive Officer
ATTEST:
/s/ Xxxxxxx Xx
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Xxxxxxx Xx
Secretary
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OMNIVISION TECHNOLOGIES, INC.
(a California corporation)
OFFICERS' CERTIFICATE
Xxxx Hong and H. Xxxx XxXxxx certify that:
1. They are the President and the Chief Financial Officer, respectively,
of OmniVision Technologies, Inc., a corporation organized under the laws of the
State of California.
2. The corporation has two authorized classes of stock, designated
"Common Stock" and "Preferred Stock." There are authorized 20,000,000 shares of
Common Stock and 12,783,336 shares of Preferred Stock. Of the authorized shares
of Preferred Stock, 4,450,003 shares are designated as "Series A Preferred
Stock", 4,000,000 shares are designated as "Series B Preferred Stock", and
4,333,333 shares are designated as "Series C Preferred Stock.."
3. There were 3,936,550 shares of Common Stock issued and outstanding,
4,300,001 shares of Series A Preferred Stock issued and outstanding and
3,671,668 shares of Series B Preferred Stock issued and outstanding and
4,333,332 shares of Series C Preferred Stock issued and outstanding as of the
record date of the shareholders' approval of the Agreement and Plan of Merger
attached hereto (the "Merger Agreement").
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 the Common Stock and more than
50% of the votes entitled to be cast by holders of outstanding shares of the
Series A Preferred Stock, Series B Preferred Stock, and Series C Preferred Stock
voting as a single class.
6. The undersigned 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 March 6, 2000.
/s/ Xxxx Hong
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Xxxx Hong, President and
Chief Executive Officer
/s/ H. Xxxx XxXxxx
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H. Xxxx XxXxxx, Vice President,
Finance and Chief Financial Officer
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OMNIVISION TECHNOLOGIES, INC.
(a Delaware Corporation)
(Surviving Corporation)
OFFICERS' CERTIFICATE
Xxxx Hong and H. Xxxx XxXxxx certify that:
1. They are the President and Chief Financial Officer, respectively, of
OmniVision Technologies, Inc., a corporation organized under the laws of the
State of Delaware.
2. The corporation has two authorized classes of stock, designated
"Common Stock" and "Preferred Stock." There are authorized 100,000,000 shares
of Common Stock and 12,783,336 shares of Preferred Stock. Of the authorized
shares of Preferred Stock, 4,450,003 shares are designated as "Series A
Preferred Stock", 4,000,000 shares are designated as "Series B Preferred Stock",
and 4,333,333 shares are designated as Series C Preferred Stock."
3. There are 1,000 shares of Common Stock issued and outstanding and
entitled to vote on the Agreement and Plan of Merger attached hereto (the
"Merger Agreement"). 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 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 the sole stockholder of all outstanding shares of Common Stock.
6. The undersigned 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 March 6, 2000.
/s/ Xxxx Hong
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Xxxx Hong, President and
Chief Executive Officer
/s/ H. Xxxx XxXxxx
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H. Xxxx XxXxxx, Vice President,
Finance and Chief Financial
Officer
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