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EXHIBIT 10.30
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER ("Agreement"), dated as of March ___,
1997, is entered into between Xxxxx Instruments Corp., a California corporation
("Xxxxx California"), and Xxxxx Merger Corp., a Delaware corporation and
wholly-owned subsidiary of Xxxxx California ("Xxxxx Delaware"). Xxxxx California
and Xxxxx Delaware are hereinafter sometimes collectively referred to as the
"Constituent Corporations."
W I T N E S S E T H:
WHEREAS, Xxxxx California is a corporation duly organized and
existing under the laws of the State of California;
WHEREAS, Xxxxx Delaware is a corporation duly organized and
existing under the laws of the State of Delaware;
WHEREAS, on the date of this Agreement, Xxxxx California has
authority to issue 21,000,000 shares of capital stock, consisting of: (i)
15,000,000 shares of Series A Common Stock, no par value ("California Series A
Common Stock"), of which 4,250,000 shares are issued and outstanding or reserved
for issuance; (ii) 5,000,000 shares of Series B Common Stock, no par value
("California Series B Common Stock"), of which 1,500,000 shares are issued and
outstanding or reserved for issuance; and (iii) 1,000,000 shares of Preferred
Stock, no par value, of which 1,000 shares of Series A Preferred Stock
("California Series A Preferred Stock") are issued and outstanding;
WHEREAS, on the date of this Agreement, Xxxxx Delaware has
authority to issue 21,000,000 shares of capital stock, consisting of: (i)
15,000,000 shares of Series A Common Stock, par value $0.01 per share ("Delaware
Series A Common Stock"), 10 of which shares are issued and outstanding and owned
by Xxxxx California; (ii) 5,000,000 shares of Series B Common Stock, par value
$0.01 per share ("Delaware Series B Common Stock"), of which no shares are
issued and outstanding; and (iii) 1,000,000 shares of Preferred Stock, par value
$0.01 per share, of which 1,000 shares have been designated Series A Preferred
Stock ("Delaware Series A Preferred Stock") and no shares are issued and
outstanding;
WHEREAS, the respective Boards of Directors of Xxxxx
California and Xxxxx Delaware have determined that it is advisable and in the
best interests of each of such corporations that Xxxxx California merge with and
into Xxxxx Delaware upon the terms and subject to the conditions set forth in
this Agreement for the purpose of effecting the change of the state of
incorporation of Xxxxx California from California to Delaware;
WHEREAS, the respective Boards of Directors of Xxxxx
California and Xxxxx Delaware have, by resolutions duly adopted, approved this
Agreement;
WHEREAS, Xxxxx California has approved this Agreement as the
sole stockholder of Xxxxx Delaware; and
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WHEREAS, the shareholders of Xxxxx California have approved
this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Xxxxx California and Xxxxx Delaware hereby agree as
follows:
1. Merger. Subject to the conditions of this Agreement, Xxxxx
California shall be merged with and into Xxxxx Delaware (the "Merger"), and
Xxxxx Delaware shall be the surviving corporation (hereinafter sometimes
referred to as the "Surviving Corporation"). The Merger shall become effective
upon the date and at the time of filing of a copy of this Agreement of Merger
or an appropriate Certificate of Merger, providing for the Merger, with the
Secretary of State of the State of Delaware (the "Effective Time"). There shall
also be filed a copy of this Agreement of Merger with appropriate certificates
of merger, providing for the Merger, with the Secretary of State of the State
of California before, on or after the Effective Time.
2. Governing Documents. The Certificate of Incorporation of
Xxxxx Delaware, as in effect immediately prior to the Effective Time, shall be
the Certificate of Incorporation of the Surviving Corporation without change or
amendment until thereafter amended in accordance with the provisions thereof and
applicable laws, except that such Certificate of Incorporation shall hereby be
amended to change the name of the Surviving Corporation to "Xxxxx Instruments
Corp." and the Bylaws of Xxxxx Delaware, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving Corporation without change
or amendment until thereafter amended in accordance with the provisions thereof,
of the Certificate of Incorporation of the Surviving Corporation and applicable
law.
3. Succession. At the Effective Time, the separate corporate
existence of Xxxxx California shall cease, and Xxxxx Delaware shall possess all
the rights, privileges, powers and franchises of a public and private nature and
be subject to all the restrictions, disabilities and duties of each of the
Constituent Corporations; and all and singular, the rights, privileges, powers
and franchises of each of the Constituent Corporations, and all property, real,
personal and mixed, and all debts due to each of the Constituent Corporations on
whatever account, as well for stock subscriptions as all other things in action
belonging to each of the Constituent Corporations, shall be vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter as effectually
the property of the Surviving Corporation as they were of the respective
Constituent Corporations, and the title to any real estate vested by deed or
otherwise, in either of such Constituent Corporations shall not revert or be in
any way impaired by reason of the Merger; but all rights of creditors and all
liens upon any property of Xxxxx California shall be preserved unimpaired. To
the extent permitted by law, any claim existing or action or proceeding pending
by or against either of the Constituent Corporations may be prosecuted as if the
Merger had not taken place. All debts, liabilities and duties of the respective
Constituent Corporations shall thenceforth attach to the Surviving Corporation
and may be enforced against it to the same extent as if such debts, liabilities
and duties had been incurred or contracted by it. All corporate acts, plans,
policies, agreements, arrangements, approvals and authorizations of Xxxxx
California, its shareholders, Board of Directors and committees thereof,
officers and agents which were valid and effective immediately prior to the
Effective Time, shall be taken for all purposes as the acts, plans,
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policies, agreements, arrangements, approvals and authorizations of the
Surviving Corporation and shall be as effective and binding thereon as the same
were with respect to Xxxxx California. The employees and agents of Xxxxx
California shall become the employees and agents of the Surviving Corporation
and continue to be entitled to the same rights and benefits which they enjoyed
as employees and agents of Xxxxx California. The requirements of any plans or
agreements of Xxxxx California involving the issuance or purchase by Xxxxx
California of certain shares of its capital stock shall be satisfied by the
issuance or purchase of a like number and same class of shares of the Surviving
Corporation.
4. Directors and Officers. The Directors and Officers of Xxxxx
California on the Effective Time shall be and become the sole Directors and
Officers, holding the same titles and positions, of the Surviving Corporation on
the Effective Time, and after the Effective Time shall serve in accordance with
the Bylaws of the Surviving Corporation.
5. Further Assurances. From time to time, as and when required
by the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of Xxxxx California such deeds and other
instruments, and there shall be taken or caused to be taken by it all such
further and other action, as shall be appropriate, advisable or necessary in
order to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation the title to and possession of all property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Xxxxx
California, and otherwise to carry out the purposes of this Agreement, and the
officers and directors of the Surviving Corporation are fully authorized in the
name and on behalf of Xxxxx California or otherwise, to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
6. Conversion of Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof:
(a) each share of California Series A Common Stock outstanding
immediately prior to the Effective Time shall be changed and converted
into and shall be one fully paid and nonassessable share of Delaware
Series A Common Stock;
(b) each share of California Series B Common Stock outstanding
immediately prior to the Effective Time shall be changed and converted
into and shall be one fully paid and nonassessable share of Delaware
Series B Common Stock;
(c) each share of California Series A Preferred Stock
outstanding immediately prior to the Effective Time shall be changed
and converted into and shall be one fully paid and nonassessable share
of Delaware Series A Preferred Stock; and
(d) the 10 shares of Delaware Series A Common Stock presently
issued and outstanding in the name of Xxxxx California shall be
cancelled and retired and resume the status of authorized and unissued
shares of Delaware Series A Common Stock, and no shares of Delaware
capital stock or other securities of Xxxxx Delaware shall be issued in
respect thereof.
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7. Conditions to Obligations. The obligations of each party to
complete the Merger are subject to the following conditions:
(a) Xxxxx California Shareholder Approval. The Merger shall
have received the requisite approval of the shareholders of Xxxxx
California pursuant to the General Corporation Law of the State of
California.
(b) Approval from Government Agencies. All governmental
approvals and other actions required to effect the Merger and related
transactions shall have been obtained, without conditions or
restrictions that the affected party reasonably considers unduly
burdensome.
8. Stock Certificates. At and after the Effective Time, all of
the outstanding certificates which, immediately prior to the Effective Time,
represented shares of California capital stock shall, respectively, be deemed
for all purposes to evidence ownership of, and to represent, shares of Delaware
capital stock into which the shares of California capital stock, formerly
represented by such certificates, have been converted as herein provided. The
registered owner on the books and records of the Surviving Corporation or its
transfer agents of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to the Surviving Corporation or its transfer agents, have and be entitled to
exercise any voting and other rights with respect to, and to receive any
dividends and other distributions upon, the shares of Delaware capital stock
evidenced by such outstanding certificate as above provided.
9. Options. The same number of shares of Delaware Series A
Common Stock shall be reserved for purposes of the Xxxxx California 1997 Stock
Incentive Plan (the "Plan") as is equal to the number of shares of California
Series A Common Stock so reserved as of the Effective Time. As of the Effective
Time, Xxxxx Delaware hereby assumes the Plan and all obligations of Xxxxx
California under the Plan.
10. Other Employee Benefit Plans. As of the Effective Time,
Xxxxx Delaware hereby assumes all obligations under any and all employee benefit
plans of Xxxxx California in effect as of the Effective Time or with respect to
which employee rights or accrued benefits are outstanding as of the Effective
Time.
11. Amendment. Subject to applicable law, this Agreement may
be amended, modified or supplemented by written agreement of the parties hereto
at any time prior to the Effective Time with respect to any of the terms
contained herein; provided, however, that no such amendment, modification or
supplement not adopted and approved by the shareholders of Xxxxx California and
Xxxxx Delaware shall affect the rights of either or both of such shareholders in
a manner which is materially adverse to either or both of them or change any of
the principal terms of this Agreement of Merger.
12. Abandonment. At any time prior to the Effective Time, this
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of Xxxxx California, notwithstanding approval of this Agreement by the
stockholder of Xxxxx Delaware or by the shareholders of Xxxxx California, or
both, if, in the opinion of the
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Board of Directors of Xxxxx California, circumstances arise which, in the
opinion of such Board of Directors, make the Merger for any reason inadvisable.
13. Counterparts. In order to facilitate the filing and
recording of this Agreement, the same may be executed in two or more
counterparts, each of which shall be deemed to be an original and the same
agreement.
IN WITNESS WHEREOF, Xxxxx California and Xxxxx Delaware have
caused this Agreement to be signed by their respective duly authorized officers
as of the date first above written.
XXXXX INSTRUMENTS CORP.,
a California corporation
By: ________________________________
Xxxx X. Xxxxxx
Chief Executive Officer
ATTEST:
By: _________________________
Xxxxxx X. Xxxxxxx
Secretary
XXXXX MERGER CORP.,
a Delaware corporation
By: ________________________________
Xxxx X. Xxxxxx
Chief Executive Officer
ATTEST:
By: _________________________
Xxxxxx X. Xxxxxxx
Secretary
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