EXHIBIT 3.95
AGREEMENT OF MERGER
AGREEMENT OF MERGER, dated this 31st day of August, 2001, pursuant to
section 251 of the General Corporation Law of the State of Delaware, between API
Electronics, Inc., a Delaware Corporation and API Acquisition Corp., a Delaware
Corporation.
WITNESSETH that:
WHEREAS, all of the constituent corporations desire to merge into a single
corporation, as hereinafter specified; and
WHEREAS, the registered office of said API Electronics, Inc. in the State
of Delaware is located at Corporation Trust Center, 0000 Xxxxxx Xxxxxx in the
City of Wilmington, County of New Castle, and the name of its registered agent
at such address is The Corporation Trust Company; and the registered office of
API Acquisition Corp. in the State of Delaware is located at Corporation Trust
Center, 0000 Xxxxxx Xxxxxx in the City of Wilmington, County of New Castle, and
the name of its registered agent at such address is The Corporation Trust
Company.
NOW, THEREFORE, the corporations, parties to this Agreement, in
consideration of the mutual covenants, agreements and provisions hereinafter
contained do hereby prescribe the terms and conditions of said merger and mode
of carrying the same into effect as follows:
FIRST: API Electronics, Inc. hereby merges into itself API Acquisition
Corp. and said API Acquisition Corp. shall be and hereby is merged into API
Electronics, Inc. which shall be the surviving corporation.
SECOND: The Certificate of Incorporation of API Electronics, Inc., which is
the surviving corporation, as heretofore amended and as in effect on the date of
the merger provided for in this Agreement, shall continue in full force and
effect as the Certificate of Incorporation of the corporation surviving this
merger.
THIRD: The manner of converting the outstanding shares of the capital stock
of each of the constituent corporations into the shares or other securities of
the surviving corporation shall be as follows:
(a) Each share of common stock of the merged corporation which shall be
outstanding on the effective date of this Agreement, and all rights in respect
thereof shall forthwith be cancelled and no consideration shall be payable with
respect to any such shares. Each share of common stock of the surviving
corporation which shall be outstanding on the effective date of this Agreement,
and all rights in respect thereof shall forthwith be (i) exchanged with
XxxxxxxxXxxxx.xxx Inc., an Ontario Corporation the parent of the merged
corporation ("IC"), for 32,991.57 shares of IC common stock and A and B warrants
to purchase an aggregate of 32,991.57 shares of IC common stock and (ii)
cancelled immediately thereafter. The surviving corporation shall issue a new
certificate for 100 shares of common stock to IC, which shall represent all of
the issued and outstanding shares of the surviving corporation.
(b) After the effective date of this Agreement, each holder of an
outstanding certificate representing shares of common stock of the merged
corporation shall surrender the same to the surviving corporation and each such
shareholder shall cease to be stockholders of the surviving corporation and
shall have no rights as stockholders of the surviving corporation.
FOURTH: The Terms and conditions of the merger are as follows:
(a) The by-laws of the surviving corporation as they shall exist on the
effective date of this Agreement shall be and remain the by-laws of the
surviving corporation until the same shall be altered, amended or repealed as
therein provided.
(b) The directors and officers of the surviving corporation shall continue
in office until the next annual meeting of stockholders and until their
successors shall have been elected and qualified.
(c) This merger shall become effective upon filing with the Secretary of
State of Delaware.
(d) Upon the merger becoming effective, all property, rights, privileges,
franchises, patents, trademarks, licenses, registrations and other assets of
every kind and description of the merged corporation shall be transferred to,
vested in and devolve upon the surviving corporation without further act or deed
and all property, rights, and every other interest of the surviving corporation
and the merged corporation shall be as effectively the property of the surviving
corporation as they were of the surviving corporation and the merged corporation
respectively. The merged corporation hereby agrees from time to time, as and
when requested by the surviving corporation or by its successors or assigns, to
execute and deliver or cause to be executed and delivered all such deeds and
instruments and to take or cause to be taken such further or other action as the
surviving corporation may deem necessary or desirable in order to vest in and
confirm to the surviving corporation title to and possession of any property of
the merged corporation acquired or to be acquired by reason of or as a result of
the merger herein provided for and otherwise to carry out the intent and
purposes hereof and the proper officers and directors of the merged corporation
and the proper officers and directors of the surviving corporation are fully
authorized in the name of the merged corporation or otherwise to take any and
all such action.
FIFTH: Anything herein or elsewhere to the contrary notwithstanding, this
Agreement may be terminated and abandoned by the Board of Directors of any
constituent corporation at any time prior to the time that this Agreement filed
with the Secretary of State becomes effective. This Agreement may be amended by
the Board of Directors of the constituent corporations at any time prior to the
time that this Agreement filed with the Secretary of State becomes effective,
provided that an amendment made subsequent to the adoption of the Agreement by
the stockholders of any 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 the Agreement if such alteration or change would adversely affect the holders
of any class or series thereof of such constituent corporation.
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the approval
and authority duly given by resolutions adopted by their respective Boards of
Directors, and that fact having been certified on said Agreement of Merger by
the Secretary of each corporate party hereto, have caused these presents to be
executed by the President of each party hereto as the respective act, deed and
agreement of each of said corporations on this 31st day of August, 2001.
API ELECTRONICS, INC.
By: _____________________________
Xxxxxx X. Xxxxx, President
API ACQUISITION CORP.
By: _____________________________
Xxxxxx X. Xxxx, President
I, Xxxxxx X. Xxxxx, Secretary of API Electronics, Inc., a corporation
organized and existing under the laws of the State of Delaware, hereby certify,
as such Secretary, that the Agreement of Merger to which this Certificate is
attached, after having been first duly signed on behalf of the said corporation
and having been signed on behalf of API Acquisition Corp., a corporation of the
State of Delaware, was duly adopted pursuant to section 228 of the General
Corporation Law of the State of Delaware by the unanimous written consent of the
stockholders holding 197 shares of the capital stock of the corporation same
being all of the shares issued and out standing having voting power, which
Agreement of Merger was thereby adopted as the act of the stockholders of said
API Electronics, Inc. and the duly adopted agreement and act of the said
corporation.
WITNESS, my hand on this 31st day of August, 2001.
________________________________
Xxxxxx X. Xxxxx, Secretary
I, Xxxxxx X. Xxxxx, Secretary of API Electronics, Inc., a corporation
organized and existing under the laws of the State of Delaware, hereby certify,
as such Secretary, that the Agreement of Merger to which this Certificate is
attached, after having been first duly signed on behalf of the said corporation
and having been signed on behalf of API Acquisition Corp., a corporation of the
State of Delaware, was duly adopted pursuant to section 228 of the General
Corporation Law of the State of Delaware by the written consent of the
stockholders holding 100 shares of the capital stock of the corporation same
being 50.76 percentum of the shares issued and out standing having voting power,
which Agreement of Merger was thereby adopted as the act of the stockholders of
said API Electronics, Inc. and the duly adopted agreement and act of the said
corporation.
WITNESS, my hand on this 31st day of August, 2001.
________________________________
Xxxxxx X. Xxxxx, Secretary
I, Xxxxxx X. Xxxx, Secretary of API Acquisition Corp., a corporation
organized and existing under the laws of the State of Delaware, hereby certify,
as such Secretary, that the Agreement of Merger to which this Certificate is
attached, after having been first duly signed on behalf of the said corporation
and having been signed on behalf of API Electronics, Inc., a corporation of the
State of Delaware, was duly adopted pursuant to section 228 of the General
Corporation Law of the State of Delaware by the unanimous written consent of
the stockholders holding 100 shares of the capital stock of the corporation,
same being all of the shares issued and outstanding having voting power, which
Agreement of Merger was thereby adopted as the act of the stockholders of said
API Acquisition Corp. and the duly adopted agreement and act of the said
corporation.
WITNESS my hand on this 31st day of August, 2001.
__________________________
Xxxxxx X. Xxxx, Secretary
