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Exhibit 2.5
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered into
as of May ___, 1997 by and between Jaycor Emerging Technologies, Inc., a
California corporation ("JETI"), and Jaymark, Inc., a Delaware corporation
("Jaymark").
WITNESSETH:
WHEREAS, Jaymark is a corporation duly organized and validly existing under
the laws of the State of Delaware;
WHEREAS, JETI is a corporation duly organized and validly existing under
the laws of the State of California;
WHEREAS, on the date of this Merger Agreement, Jaymark has authority to
issue one thousand (1,000) shares of Common Stock, par value One-Tenth of One
Cent ($0.001) per share (the "Jaymark Common Stock"), of which one hundred (100)
shares are issued and outstanding and owned by JETI;
WHEREAS, on the date of this Merger Agreement, JETI has authority to issue
twelve million (12,000,000) shares of Common Stock (the "JETI Common Stock"), of
which three million one hundred two thousand seven hundred seventy (3,102,770)
shares are issued and outstanding;
WHEREAS, the respective Boards of Directors for Jaymark and JETI have
determined that, for the purpose of effecting the reincorporation of JETI in the
State of Delaware, it is advisable and to the advantage of said two corporations
and their respective shareholders that JETI merge with and into Jaymark upon the
terms and conditions herein provided; and
WHEREAS, the respective Boards of Directors of Jaymark and JETI, the
shareholders of JETI, and the sole stockholder of Jaymark have adopted and
approved this Merger Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, JETI and Jaymark hereby agree to merge as follows:
1. Merger. JETI shall be merged with and into Jaymark, and Jaymark shall
survive the merger ("Merger"), effective upon the date when this Merger
Agreement is made effective in accordance with applicable law (the "Effective
Date").
2. Governing Documents. The Certificate of Incorporation of Jaymark shall
be amended to read in full as follows:
FIRST: The name of the Corporation is Jaymark, Inc. (hereinafter sometimes
referred to as the "Corporation").
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SECOND: The address of the registered office of the Corporation in the
State of Delaware is The Corporation Trust Company, 0000 Xxxxxx
Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx,
00000. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of Delaware.
FOURTH:
A. Classes of Stock. The total number of shares which the Corporation
is authorized to issue is sixteen million (16,000,000) shares of
common stock, One-Tenth of One Cent ($0.001) par value per share
("the Common Stock").
B. Rights, Preferences and Restrictions of the Common Stock. The
Common Stock authorized by this Certificate of Incorporation may be
issued from time to time in two (2) classes. The first class of
Common Stock shall be designated "Class A Common Stock," which
class shall consist of twelve million (12,000,000) shares. The
second class of Common Stock shall be designated "Class B Common
Stock", which class shall consist of four million (4,000,000)
shares and shall be issued in five series, the first of which shall
be designated "Series B-1 Common Stock," which series shall consist
of eight hundred thousand (800,000) shares. The second series of
Class B Common Stock shall be designated "Series B-2 Common Stock,"
which series shall consist of eight hundred thousand (800,000)
shares. The third series of Class B Common Stock shall be
designated "Series B-3 Common Stock," which series shall consist of
eight hundred thousand (800,000) shares. The fourth series of Class
B Common Stock shall be designated "Series B-4 Common Stock," which
series shall consist of eight hundred thousand (800,000) shares.
The fifth series of Class B Common Stock shall be designated
"Series B-5 Common Stock," which series shall consist of eight
hundred thousand (800,000) shares. The relative rights,
preferences, privileges and restrictions granted to or imposed upon
the shares of the Class A Common Stock, the Series B-1 Common
Stock, the Series B-2 Common Stock, the Series B-3 Common Stock,
the Series B-4 Common Stock and the Series B-5 Common Stock
(collectively, the "Common Stock") are as follows:
1. Dividend Provisions. The holders of shares of the Common Stock
shall be entitled to dividends out of funds legally available
therefor, when and as declared by the Board of Directors. Dividends
shall be nonmandatory and noncumulative, and no undeclared or
unpaid dividend shall bear interest.
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2. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding
up of this Corporation, either voluntary or involuntary, all assets
and funds of the Corporation legally available for distribution to
stockholders shall be distributed among the holders of Common Stock
pro rata on the basis of the number of shares of Class A Common
Stock outstanding and issuable upon conversion of such Series B-1
Common Stock, Series B-2 Common Stock, Series B-3 Common Stock,
Series B-4 Common Stock and Series B-5 Common Stock held by such
holder (as adjusted for stock splits, stock dividends,
recapitalizations, and the like, plus any declared but unpaid
dividends on such shares).
(b) A consolidation or merger of this Corporation with or
into any other corporation or corporations pursuant to which more
than fifty percent (50%) of the voting power of the Corporation is
transferred to third parties, or a sale, conveyance or disposition
of all or substantially all of the assets of this Corporation or
the effectuation by the Corporation of a transaction or series of
related transactions in which more than fifty percent (50%) of the
voting power of the Corporation is disposed of (other than as a
result of the Corporation's issuance of voting securities), shall
be deemed to be a liquidation, dissolution or winding up within the
meaning of this Section 2.
3. Conversion. The holders of the Series B-1 Common Stock, Series
B-2 Common Stock, Series B-3 Common Stock, Series B-4 Common Stock
and Series B-5 Common Stock shall have conversion rights as follows
(the "Conversion Rights"):
(a) Automatic Conversion.
(i) Each outstanding share of Series B-1 Common
Stock shall automatically be converted into one (1) fully paid and
nonassessable share of Class A Common Stock (as adjusted to reflect
subsequent stock dividends, stock splits, recapitalizations, and
the like) immediately upon the date of consummation (the "B-1
Conversion Date") of the Corporation's sale of its Class A Common
Stock in a bona fide, firm commitment underwriting pursuant to a
registration statement on Form S-1 under the Securities Act of
1933, as amended, ("Securities Act") (the "Initial Public
Offering"). Each outstanding share of Series B-2 Common Stock shall
automatically be converted into one (1) fully paid and
nonassessable share of Class A Common Stock (as adjusted to reflect
subsequent stock dividends, stock splits, recapitalizations, and
the like) immediately upon the first anniversary of the
consummation of the Initial Public Offering (the "B-2 Conversion
Date"). Each outstanding share of Series B-3 Common Stock shall
automatically be converted into fully paid and nonassessable
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shares of Class A Common Stock (as adjusted to reflect subsequent
stock dividends, stock splits, recapitalizations, and the like)
immediately upon the second anniversary of the consummation of the
Initial Public Offering (the "B-3 Conversion Date"). Each
outstanding share of Series B-4 Common Stock shall automatically be
converted into one (1) fully paid and nonassessable share of Class
A Common Stock (as adjusted to reflect subsequent stock dividends,
stock splits, recapitalizations, and the like) immediately upon the
third anniversary of the consummation of the Initial Public
Offering (the "B-4 Conversion Date"). Each outstanding share of
Series B-5 Common Stock shall automatically be converted into one
(1) fully paid and nonassessable share of Class A Common Stock (as
adjusted to reflect subsequent stock dividends, stock splits,
recapitalizations, and the like) immediately upon the fourth
anniversary of the consummation of the Initial Public Offering (the
"B-5 Conversion Date"). In the event that the Initial Public
Offering has not been consummated by December 31, 1997, (the "Class
B Conversion Date"), then each outstanding share of each series of
Class B Common Stock shall automatically be converted into one (1)
fully paid and nonassessable share of Class A Common Stock (as
adjusted to reflect subsequent stock dividends, stock splits,
recapitalizations and the like) on such date.
(b) Mechanics of Conversion. Conversion of the Series B-1
Common Stock, Series B-2 Common Stock, Series B-3 Common Stock,
Series B-4 Common Stock and Series B-5 Common Stock in accordance
with Section C.3(a)(i) of this Article Fourth shall be automatic,
and (i) on and after the B-1 Conversion Date, all of the
outstanding certificates which prior to that time represented
shares of Series B-1 Common Stock shall be deemed for all purposes
to evidence ownership of and to represent the shares of Class A
Common Stock into which the shares of B-1 Common Stock have been
converted, (ii) on and after the B-2 Conversion Date, all of the
outstanding certificates which prior to that time represented
shares of Series B-2 Common Stock shall be deemed for all purposes
to evidence ownership of and to represent the shares of Class A
Common Stock into which the shares of Series B-2 Conversion Stock
have been converted, (iii) on and after the B-3 Conversion Date,
all of the outstanding certificates which prior to that time
represented shares of Series B-3 Common Stock shall be deemed for
all purposes to evidence ownership of and to represent the shares
of Class A Common Stock into which the shares of Series B-3 Common
Stock have been converted, (iv) on and after the B-4 Conversion
Date, all of the outstanding certificates which prior to that time
represented shares of Series B-4 Common Stock shall be deemed for
all purposes to evidence ownership of and to represent the shares
of Class A Common Stock into which the shares of Series B-4 Common
Stock have been converted, (v) on and after the B-5 Conversion
Date, all of the outstanding certificates which prior to that time
represented shares of Series B-5 Common Stock shall be deemed for
all purposes to evidence
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ownership of and to represent the shares of Class A Common Stock
into which the shares of Series B-5 Common Stock have been
converted, and (vi) on and after the Class B Conversion Date, in
the event that the Initial Public Offering has not been consummated
by such date, all outstanding certificates which prior to that time
represented shares of any series of Class B Common Stock shall be
deemed for all purposes to evidence ownership of and to represent
the shares of Class A Common Stock into which the shares of Class B
Common Stock have been converted.
(c) No Fractional Shares and Certificate as to Adjustments.
(i) No fractional shares shall be issued upon
conversion of the Series B-1 Common Stock, Series B-2 Common Stock,
Series B-3 Common Stock, Series B-4 Common Stock or Series B-5
Common Stock, and the number of shares of Class A Common Stock to
be issued upon such conversion shall be rounded to the nearest
whole share.
(d) Notices of Record Date. In the event of any taking by
this Corporation of a record of the holders of any class of
securities for the purpose of determining the holders thereof who
are entitled to receive any dividend (other than a cash dividend)
or other distribution, any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, this
Corporation shall mail to each holder of Common Stock at least
twenty (20) days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the
purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right.
(e) Reservation of Stock Issuable Upon Conversion. This
Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock solely for the
purpose of effecting the conversion of the shares of the Series B-1
Common Stock, Series B-2 Common Stock, Series B-3 Common Stock,
Series B-4 Common Stock and Series B-5 Common Stock such number of
its shares of Class A Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of
the Series B-1 Common Stock, Series B-2 Common Stock, Series B-3
Common Stock, Series B-4 Common Stock and Series B-5 Common Stock;
and if at any time the number of authorized but unissued shares of
Class A Common Stock shall not be sufficient to effect the
conversion of all then outstanding shares of the Series B-1 Common
Stock, Series B-2 Common Stock, Series B-3 Common Stock, Series B-4
Common Stock and Series B-5 Common Stock, in addition to such other
remedies as shall be available to the holder of such stock, this
Corporation will take such corporate action as may, in the opinion
of its counsel, be necessary to increase its authorized but
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unissued shares of Class A Common Stock to such number of shares as
shall be sufficient for such purposes.
(f) Notices. Any notice required by the provisions of this
Certificate of Incorporation to be given to the holders of shares
of Series B-1 Common Stock, Series B-2 Common Stock, Series B-3
Common Stock, Series B-4 Common Stock, or Series B-5 Common Stock
shall be addressed to each holder of record at his address
appearing on the books of this Corporation and shall be deemed
given (i), if sent by mail, three (3) days after deposit in the
United States mail, first class postage prepaid, and, (ii), if sent
by messenger or courier, three (3) days after delivery to the
messenger or courier, or upon receipt by such holder, if earlier.
5. Voting Rights. The holder of each share of Common Stock shall
have the right to one vote for each share of Class A Common Stock
outstanding or each share of Class A Common Stock into which such
share of Series B-1 Common Stock, Series B-2 Common Stock, Series
B-3 Common Stock, Series B-4 Common Stock or Series B-5 Common
Stock would be converted on the applicable Conversion Date (with
any fractional share determined on an aggregate conversion basis
being rounded to the nearest whole share) held by such holder, and
with respect to such vote, such holder shall have full voting
rights and powers equal to the voting rights and powers of the
holders of Common Stock shall be entitled, notwithstanding any
provision hereof, to notice of any stockholders' meeting in
accordance with the by-laws of this Corporation (the "Bylaws"), and
shall be entitled to vote, together with holders of Common Stock,
with respect to any questions upon which holders of Common Stock
have the right to vote.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or by
this certificate of incorporation or the By-laws, the directors are
hereby empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
C. On and after the consummation of the Initial Public Offering, any
action required or permitted to be taken by the stockholders of the
Corporation
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must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders. Prior to such sale, unless
otherwise provided by law, any action which may otherwise be taken
at any meeting of the stockholders may be taken without a meeting
and without prior notice, if a written consent describing such
actions is signed by the holders of outstanding shares having not
less than the minimum number of votes which would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
SIXTH:
A. The number of directors shall initially be set at six (6) and,
thereafter, shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority
of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board of Directors for
adoption). A vacancy resulting from the removal of a director by
the stockholders as provided in Article SIXTH, Section C below may
be filled at a special meeting of the stockholders held for that
purpose.
B. Newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation or other cause (other
than removal from office by a vote of the stockholders) may be
filled only by a majority vote of the directors then in office,
though less than a quorum, and directors so chosen shall hold
office for a term expiring at the next annual meeting of
stockholders at which the term of office to which they have been
elected expires, and until their respective successors are elected,
except in the case of the death, resignation, or removal of any
director. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent
director.
C. Any directors, or the entire Board of Directors, may be removed
from office at any time, with or without cause, but only by the
affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting
together as a single class. Vacancies in the Board of Directors
resulting from such removal may be filled by a majority of the
directors then in office, though less than a quorum, or by the
stockholders as provided in Article SIXTH, Section A above.
Directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of office to
which they have been elected expires, and until their respective
successors are elected, except in the case of the death,
resignation, or removal of any director.
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SEVENTH:The Board of Directors is expressly empowered to adopt, amend or
repeal the By-laws. Any adoption, amendment or repeal of By-laws by
the Board of Directors shall require the approval of a majority of
the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the
time any resolution providing for adoption, amendment or repeal is
presented to the Board of Directors). The stockholders shall also
have power to adopt, amend or repeal the By-laws; provided,
however, that any adoption, amendment or repeal of By-laws of the
Corporation by the stockholders without the prior approval of the
Board of Directors shall require, in addition to any vote of the
holders of any class or series of stock of the Corporation required
by law or by this certificate of incorporation, the affirmative
vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then-outstanding shares
of the capital stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class.
EIGHTH: To the fullest extent permitted by the Delaware General Corporation
Law, a director of this Corporation shall not be liable to this
Corporation or its stockholders for monetary damages for any breach
of a fiduciary duty as a director.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of
a director, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended. Any repeal or
modification of the foregoing provisions of this Article EIGHTH by
the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights
conferred upon stockholders are granted subject to this
reservation; provided, however, that, notwithstanding any other
provision of this certificate of incorporation or any provision of
law which might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the
stock of this Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of
all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to
amend or repeal this Article NINTH, Article FIFTH, Article SIXTH,
Article SEVENTH or Article EIGHTH.
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The Certificate of Incorporation of Jaymark, as amended herein, shall
continue to be the Certificate of Incorporation of Jaymark as the surviving
Corporation without change or amendment until further amended in accordance with
the provisions thereof and applicable laws. The by-laws of Jaymark, in effect on
the Effective Date, shall continue to be the by-laws of Jaymark as the surviving
Corporation without change or amendment until further amended in accordance with
the provisions thereof and applicable laws.
TENTH The name and mailing address of the incorporator of Jaymark is:
Xxxxx X. Xxxxx, Esq.
Xxxx Xxxx Xxxx & Freidenrich
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
3. Directors. The directors of JETI shall become the directors of Jaymark
upon the Effective Date and the members of any committee of the board of
directors of JETI shall become the members of such committees for Jaymark.
4. Succession. On the Effective Date, Jaymark shall succeed to JETI in the
manner of and as more fully set forth in Section 259 of the General Corporation
Law of the State of Delaware.
5. Further Assurances. From time to time, as and when required by Jaymark
or by its successors and assigns, there shall be executed and delivered on
behalf of JETI such deeds and other instruments, and there shall be taken or
caused to be taken by it such further and other action, as shall be appropriate
or necessary in order to vest, perfect or confirm, of record or otherwise, in
Jaymark the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of JETI, and
otherwise to carry out the purposes of this Merger Agreement and the officers
and directors of Jaymark are fully authorized in the name and on behalf of JETI
or otherwise to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
6. Stock of JETI.
a. Common Stock. Upon the Effective Date, by virtue of the Merger and
without any action on the part of the holder thereof, each five (5) shares of
JETI Common Stock outstanding immediately prior thereto shall be changed and
converted into three (3) fully paid and nonassessable shares of Jaymark Common
Stock, of which one-fifth (1/5) will be Series B-1 Common Stock, one-fifth (1/5)
will be Series B-2 Common Stock, one-fifth (1/5) will be Series B-3 Common
Stock, one-fifth (1/5) will be Series B-4 Common Stock and one-fifth (1/5) will
be Series B-5 Common Stock. In the event that the outstanding shares represented
by a stock certificate do not divide evenly among such five series, the
fractional portions thereof shall become shares of Series B-5 Common Stock.
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b. Fractional Shares. No fractional shares which a Jaymark stockholder
would otherwise be entitled to receive by reason of the exchange of JETI stock
for Jaymark stock shall be issued, and the number of shares of Jaymark Common
Stock shall be rounded to the nearest whole share.
7. Stock Certificates. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of JETI
capital stock shall be deemed for all purposes to evidence ownership of and to
represent the shares of Jaymark Common stock into which the shares of JETI
capital stock represented by such certificates have been converted as herein
provided. The registered owner on the books and records of Jaymark or its
transfer agent of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to Jaymark or its transfer agent, have and be entitled to exercise any voting
and other rights with respect to and to receive any dividend and other
distributions upon the shares of Jaymark stock evidenced by such outstanding
certificate as above provided.
8. Options. Upon the Effective Date, each outstanding option, warrant or
other right to purchase five (5) shares of JETI stock, including those options
granted and outstanding under the 1980 Stock Option Plan, the 1990 Incentive
Stock Option Plan, the 1991 Stock Option Plan, the 1996 Stock Option Plan, the
1997 Outside Directors Stock Option Plan, the Employee Stock Ownership Plan and
the 1997 Employee Stock Purchase Plan (collectively, the "Plans") of JETI, shall
be converted into and become an option, warrant, or right to purchase three (3)
shares of Jaymark Class B Common Stock (rounded to the nearest whole share) at a
price per share equal to one hundred sixty-six and two-thirds percent (166 2/3%)
of the exercise price of the option, warrant or right to purchase JETI Common
Stock, and upon the same terms and subject to the same conditions as set forth
in such plan and other agreements entered into by JETI pertaining to such
options, warrants, or rights. Upon the exercise of an option, warrant or right
to purchase Class B Common Stock, the shares so issued shall be comprised of (a)
one-fifth (1/5) of Series B-1 Common Stock, one-fifth (1/5) of Series B-2 Common
Stock, one-fifth (1/5) of Series B-3 Common Stock, one-fifth (1/5) of Series B-4
Common Stock and one-fifth (1/5) of Series B-5 Common Stock; provided, however,
that if on the date of exercise a series of Class B Common Stock has been
earlier converted pursuant to Article Fourth, Section C, 3, then the holder
shall receive the number of shares of Series A Common Stock into which such
series of Class B Common Stock had been converted. A number of shares of Jaymark
Common Stock shall be reserved for purposes of such options, warrants, and
rights equal to the number of shares of JETI stock so reserved as of the
Effective Date. As of the Effective Date, Jaymark shall assume all obligations
of JETI under agreements pertaining to such options, warrants, and rights,
including the Plans, and the outstanding options, warrants, or other rights, or
portions thereof, granted pursuant thereto.
9. Other Employee Benefit Plans. As of the Effective Date, Jaymark hereby
assumes all obligations of JETI under any and all employee benefit plans in
effect as of said date or with respect to which employee rights or accrued
benefits are outstanding as of said date.
10. Outstanding Common Stock of Jaymark. Forthwith upon the Effective Date,
the one hundred (100) shares of Jaymark Common Stock presently issued and
outstanding in the
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name of JETI shall be canceled and retired and resume the status of authorized
and unissued shares of Jaymark Common Stock, and no shares of Jaymark Common
Stock or other securities of Jaymark shall be issued in respect thereof.
11. Covenants of Jaymark. Jaymark 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 all other states in which JETI is so qualified and in which
the failure so to qualify would have a material adverse impact on the business
or financial condition of Jaymark. In connection therewith, Jaymark shall
irrevocably appoint an agent for service of process as required under the
provisions of Section 2105 of the California Corporations Code and under
applicable provisions of state law in other states in which qualification is
required hereunder.
b. File any and all documents with the California Franchise Tax Board
necessary to the assumption by Jaymark of all of the franchise tax liabilities
of JETI.
12. Amendment. At any time before or after approval and adoption by the
stockholders of JETI, this Merger Agreement may be amended in any manner as may
be determined in the judgment of the respective boards of directors of Jaymark
and JETI to be necessary, desirable or expedient in order to clarify the
intention of the parties hereto or to effect or facilitate the purposes and
intent of this Merger Agreement.
13. Abandonment. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the board of
directors of either JETI or Jaymark or both, notwithstanding approval of this
Merger Agreement by the sole stockholder of Jaymark and the stockholders of
JETI.
14. Counterparts. In order to facilitate the filing and recording of this
Merger Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original.
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IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by resolution of the respective board of directors of JETI and Jaymark, is
hereby executed on behalf of each of said two corporations by their respective
officers thereunto duly authorized.
JAYMARK:
JAYMARK, INC.,
a Delaware corporation
By:________________________________
Xxxx X. Xxxxxx, President
ATTEST:
___________________________________
Xxxxxxx X. Xxxxxxx , Secretary
JETI:
JAYCOR EMERGING
TECHNOLOGIES, INC.,
a California corporation
By:________________________________
Xxxx X. Xxxxxx, President
ATTEST:
___________________________________
Xxxxxxx X. Xxxxxxx, Secretary
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