EXHIBIT A
AGREEMENT AND PLAN OF MERGER BETWEEN
PMC-SIERRA, INC., A DELAWARE CORPORATION
AND
SIERRA SEMICONDUCTOR CORPORATION, A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of ________ __, 1997, (the
"Agreement") is between PMC-SIERRA, INC., a Delaware corporation
("Sierra-Delaware") and SIERRA SEMICONDUCTOR CORPORATION, a California
corporation ("Sierra-California"). Sierra-Delaware and Sierra-California are
sometimes referred to herein as the "Constituent Corporations."
R E C I T A L S
---------------
A. Sierra-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 55,000,000
shares, 50,000,000 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, 1,000 shares of Common Stock were issued and
outstanding, all of which were held by Sierra-California. No shares of Preferred
Stock were issued and outstanding.
B. Sierra-California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 55,405,916
shares, 50,000,000 of which are designated "Common Stock", no par value,
5,000,000 of which are designated "Preferred Stock", no par value, and 405,916
of which are designated "Series D Preferred Stock," no par value. As of the date
of this Agreement, ___________ shares of Common Stock were issued and
outstanding. No shares of Preferred Stock or Series D Preferred Stock or
undersigned preferred Stock were issued and outstanding.
C. The Board of Directors of Sierra-California has determined that, for
the purpose of effecting the reincorporation of Sierra-California in the State
of Delaware, it is advisable and in the best interests of Sierra-California that
Sierra-California merge with and into Sierra-Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of Sierra-Delaware and
Sierra-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, Sierra-Delaware and Sierra-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 Corporations Code,
Sierra-California shall be merged with and into Sierra-Delaware (the "Merger"),
the separate existence of Sierra-California shall cease and Sierra-Delaware
shall be, and is herein sometimes referred as, the "Surviving Corporation", and
the name of the Surviving Corporation shall be PMC-Sierra, Inc.
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 shareholders 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 shall have been satisfied or duly waived by the party entitled to
satisfaction thereof;
(c) Executed documents evidencing the Merger and meeting
the requirements of the Delaware General Corporation Law and the California
Corporations Code, shall have been filed with the Secretary of State of the
State of Delaware and 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."
1.3. Effect of the Merger. Upon the Effective Date, the separate
---------------------
existence of Sierra-California shall cease and Sierra-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, (ii) shall be
subject to all actions previously taken by its and by Sierra-California's Boards
of Directors, (iii) shall succeed, without other transfer, to all of the assets,
rights, powers and property of Sierra-California in the manner 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, and (v) shall succeed, without other
transfer, to all of the debts, liabilities and obligations of Sierra-California
in the same manner as if Sierra-Delaware had itself incurred them, all as
provided under the applicable provisions of the Delaware General Corporation Law
and the California Corporations Code.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1. Certificate of Incorporation and Bylaws. The Certificate of
------------------------------------------
Incorporation and Bylaws of Sierra-Delaware as in effect immediately prior to
the Effective Date shall continue in full force and effect as the Certificate of
Incorporation and Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.2. Directors and Officers. The directors and officers of
--------------------------
Sierra-California immediately prior to the Effective Date shall be the directors
and officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or as otherwise provided by law, or by the
Certificate of Incorporation or Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1. Sierra-California Common Stock Shares. Upon the Effective Date,
--------------------------------------
each share of Sierra-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, by the holder of such shares or by
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.
3.2. Sierra-California Options, Stock Purchase Rights and Convertible
-----------------------------------------------------------------
Securities.
- - -----------
(a) Upon the Effective Date, the Surviving Corporation shall
assume the obligations of Sierra-California under, and continue, the option
plans (including without limitation, the 1987 Incentive Stock Plan, the 1991
Employee Stock Purchase Plan, and the 1994 Incentive Stock Plan) and all other
employee benefit plans of Sierra-California, and the Exchange Agreement between
PMC-Sierra, Inc., the Canadian subsidiary of Sierra-California, and
Sierra-California, as amended. Each outstanding and unexercised option, other
right to purchase (including without limitation, the rights of holders of
special shares of PMC-Sierra, Inc., the Canadian subsidiary of
Sierra-California, and of options to purchase such special shares, and the
rights of the holders of options of PMC-Sierra, Inc. (Portland)), or security
convertible into, Sierra-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 Sierra-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 Sierra-California Right at the Effective Date. This
paragraph 3.2(a) shall not apply to Sierra-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 equal to the number of shares of
Sierra-California Common Stock so reserved immediately prior to the Effective
Date.
(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.
3.3. Sierra-Delaware Common Stock Shares. Upon the Effective Date, each
share of Common Stock of Sierra-Delaware issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any action by
Sierra-Delaware, the holder of such shares or by any other person, be canceled
and returned to the status of authorized but unissued shares.
3.4. Exchange of Certificates. After the Effective Date, each holder of
an outstanding certificate representing shares of Sierra-California Common Stock
may be asked to surrender the same for cancellation to Boston EquiServe, L.P.
(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
Sierra-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 Sierra-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 Sierra-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.
IV. GENERAL
4.1. Covenants of Sierra-Delaware. Sierra-Delaware covenants and
------------------------------
agrees that it will, on or before the Effective Date:
(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 Sierra-Delaware of all of
the franchise tax liabilities of Sierra-California.
(c) 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
-------------------
Sierra-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Sierra-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 Sierra-Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Sierra-California and otherwise to carry out the purposes of
this Agreement, and the officers and directors of Sierra-Delaware are fully
authorized in the name and on behalf of Sierra-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, this
-----------
Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Sierra-California or of
Sierra-Delaware, or of both, notwithstanding the approval of this Agreement by
the shareholders of Sierra-California or by the sole stockholder of
Sierra-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 Secretary 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 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 1209 Orange Street, Wilmington, County
of New Castle, DE 19801, 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 2222 Qume Drive,
San Jose, California 95131 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.
4.8. FIRPTA Notification. (a) On the Effective Date, Sierra-California
-------------------
shall deliver to Sierra-Delaware, as agent for the shareholders of
Sierra-California, a properly executed statement (the "Statement") substantially
in the form attached hereto as Attachment A. Sierra-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 Sierra-California
immediately prior to the Merger. In consequence of the approval of the Merger by
the shareholders of Sierra-California, (i) such shareholders shall be considered
to have requested that the Statement be delivered to Sierra-Delaware as their
agent and (ii) Sierra-Delaware shall be considered to have received a copy of
the Statement at the request of the Sierra-California shareholders for purposes
of satisfying Sierra-Delaware's obligations under Treasury Regulation Section
1.1445-2(c)(3).
(b) Sierra-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).
4.9. Counterparts. This Agreement 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 Boards of Directors of Sierra-Delaware and Sierra-California,
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
SIERRA SEMICONDUCTOR CORPORATION
a California corporation
By:
---------------------------------------
James V. Diller, Chairman of the Board of
Directors and Chief Executive Officer
ATTEST:
Neil J. Wolff, Assistant Secretary
PMC-SIERRA, INC.
a Delaware corporation
By:
------------------------------------------
James V. Diller, Chairman of the Board of
Directors and Chief Executive Officer
ATTEST:
Neil J. Wolff, Secretary
ATTACHMENT A
------------
------------------, 1997
TO THE SHAREHOLDERS OF SIERRA SEMICONDUCTOR CORPORATION:
In connection with the reincorporation (the "Reincorporation") into
Delaware of Sierra Semiconductor Corporation, a California corporation (the
"Company"), pursuant to the Agreement and Plan of Merger (the "Agreement") dated
as of__________ ___, 1997 between the Company and PMC-Sierra, Inc., a Delaware
corporation and wholly-owned subsidiary of the Company ("Sierra-Delaware"), your
shares of the Company's stock will be replaced by shares of Sierra-Delaware's
stock.
In order to establish that (i) you will not be subject to tax under
Section 897 of the Internal Revenue Code of 1986, as amended (the "Code"), in
consequence of the Reincorporation and (ii) Sierra-Delaware will not be required
under Section 1445 of the Code to withhold taxes from the Sierra-Delaware stock
that you will receive in connection therewith, the Company hereby represents to
you that, as of the date of this letter, shares of Company stock do not
constitute a "United States real property interest" within the meaning of
Section 897(c) of the Code and the regulations issued thereunder.
A copy of this letter will be delivered to Sierra-Delaware pursuant to
Section 4.8 of the Agreement.
Under penalties of perjury, the undersigned officer of the Company
hereby declares that, to the best knowledge and belief of the undersigned, the
facts set forth herein are true and correct.
Sincerely,
SIERRA SEMICONDUCTOR CORPORATION
-----------------------------------------
By: James V. Diller, Chairman of the Board of
Directors and Chief Executive Officer