EXHIBIT 2.01
AGREEMENT OF MERGER
AGREEMENT OF MERGER entered into this eighth day of October, 1996 between
Vivid Technologies, Inc., a Massachusetts corporation ("Parent"), and Vivid
Technologies, Inc., a Delaware corporation ("Subsidiary").
RECITALS
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WHEREAS, the authorized capital stock of Parent consists of (i) 7,500,000
shares of Common Stock, $.01 par value per share ("Parent Common Stock"),
1,725,520 of which are issued and outstanding as of the date hereof; and (ii)
1,082,650 shares of Preferred Stock, $.01 par value per share, of which (A)
234,375 shares are designated Parent Series A Preferred Stock, all of which is
issued and outstanding as of the date hereof, (B) 250,000 shares are designated
Parent Series B Preferred Stock, all of which is issued and oustanding as of the
date hereof, (C) 343,690 shares are designated Parent Series C Preferred Stock,
all of which is issued and outstanding as of the date hereof, and (D) 254,585
shares are designated Parent Series D Preferred Stock, all of which is issued
and outstanding as of the date hereof, ("Parent Preferred Stock").
WHEREAS, the authorized capital stock of Subsidiary consists of (i)
10,000,000 shares of Common Stock, $.01 par value per share ("Subsidiary Common
Stock"), 100 of which are issued and outstanding and held by Parent as of the
date hereof; (ii) 1,082,650 shares of Preferred Stock, $.01 par value per share,
of which (A) 234,375 shares are designated Subsidiary Series A Preferred Stock,
(B) 250,000 shares are designated Subsidiary Series B Preferred Stock, (C)
343,690 shares are designated Subsidiary Series C Preferred Stock, (D) 254,585
shares are designated Subsidiary Series D Preferred Stock, none of which are
issued and outstanding as of the date hereof; ("Subsidiary Preferred Stock"),
and
WHEREAS, the parties deem it advisable and in the best interests of such
corporations and their stockholders that Parent be merged with and into
Subsidiary (the "Merger") in accordance with the provisions of the Massachusetts
Business Corporation Law ("MBCL") and the Delaware General Corporation Law
("DGCL") and desire to state herein the mode of carrying the same into effect
and certain other details and provisions of the Merger;
NOW, THEREFORE, in consideration of the premises and the agreements herein
contained, the parties agree as follows:
1. Constituent Corporations and Merger. Parent shall be merged into
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Subsidiary and Subsidiary shall be the surviving corporation (the "Surviving
Corporation").
2. Surviving Corporation.
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(a) The name by which the Surviving Corporation shall be known is:
Vivid Technologies, Inc.
(b) The corporate purposes of the Surviving Corporation shall be the
purposes set forth in the Certificate of Incorporation of Subsidiary.
(c) The Certificate of Incorporation and Bylaws of the Surviving
Corporation shall be the Certificate of Incorporation and Bylaws of Subsidiary.
(d) The officers and directors of the Surviving Corporation shall be
those of Subsidiary on the date hereof, and shall be set forth in the Articles
of Merger filed with the Secretary of State of the Commonwealth of
Massachusetts.
3. Effective Time. The Merger shall become effective when the
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Certificate of Merger and the Articles of Merger are filed in the Offices of the
Secretary of State of Delaware and the Secretary of State of the Commonwealth of
Massachusetts, respectively (the "Effective Time").
4. Effect of Merger. From and after the Effective Time, the effect of
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the Merger shall be as provided in Section 80 of the MBCL and Sections 252 and
259 of the DGCL, including the following: (i) the separate corporate existence
of Parent shall cease and all of its assets, property, rights and powers as well
as all debts due it and all choses in action belonging to it shall be
transferred to and vested in the Subsidiary as the Surviving Corporation without
further act or deed; and (ii) Subsidiary as the Surviving Corporation shall
continue in existence and retain all of its assets, property, leasehold
interests, rights and powers as well as all debts due it and all choses in
action belonging to it without impairment; and, further, the rights of creditors
of Parent, lessors of property leased by Parent and parties contracting with
Parent shall not in any manner be impaired by the Merger, and Subsidiary as the
Surviving Corporation shall remain liable for all of its liabilities and
obligations existing prior to the Effective Time and shall be deemed to have
assumed the obligations of Parent existing prior to the Effective Time to the
same extent as if Subsidiary had itself incurred such obligations.
5. Further Assurance. If at any time Parent shall consider or be advised
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that any acknowledgements or further assurances or assignments in law or other
similar actions are necessary or desirable to acknowledge, confirm, vest or
perfect in and to the Surviving Corporation any rights, title or interests of
Parent, or otherwise to carry out the provisions hereof, Parent and its
respective officers and directors shall and will execute and deliver any and all
such acknowledgements, assurances or assignments in law, and do all things
necessary or proper to acknowledge, confirm, vest or perfect such rights, title
or interests in the Surviving Corporation, and to otherwise carry out the
provisions of this Agreement.
6. Statutory Agent. From and after the Effective Time, until thereafter
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changed as permitted by law, the Secretary of State of the Commonwealth of
Massachusetts shall serve as the statutory agent of the Surviving Corporation
upon whom any process, notice or demand against either Parent or the Surviving
Corporation may be served for any prior obligations for so long as any liability
remains outstanding against Parent or the Surviving Corporation in the
Commonwealth of Massachusetts.
7. Conversion of Shares.
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(a) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof,
(A) each share of Parent Common Stock issued and outstanding
shall be converted into and be deemed to become one share of Subsidiary Common
Stock.
(B) each share of Parent Series A Preferred Stock issued and
outstanding shall be converted into and be deemed to become one share of
Subsidiary Series A Preferred Stock.
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(C) each share of Parent Series B Preferred Stock issued and
outstanding shall be converted into and be deemed to become one share of
Subsidiary Series B Preferred Stock.
(D) each share of Parent Series C Preferred Stock issued and
outstanding shall be converted into and be deemed to become one share of
Subsidiary Series C Preferred Stock.
(E) each share of Parent Series D Preferred Stock issued and
outstanding shall be converted into and be deemed to become one share of
Subsidiary Series D Preferred Stock.
(b) From and after the Effective Time, (i) each certificate
theretofore representing shares of issued and outstanding Parent Common Stock,
upon surrender to Subsidiary, shall entitle the holder to receive in exchange
therefor a certificate or certificates representing the number of shares of
Subsidiary Common Stock, into which the stock theretofore represented by the
certificate so surrendered shall have been converted in accordance with the
paragraph above and (ii) each certificate theretofore representing shares of
issued and outstanding Parent Series A Preferred Stock, Parent Series B
Preferred Stock, Parent Series C Preferred Stock, and Parent Series D Preferred
Stock upon surrender to Subsidiary, shall entitle the holder to receive in
exchange therefor a certificate or certificates representing the number of
shares of Subsidiary Series A Preferred Stock, Subsidiary Series B Preferred
Stock, Subsidiary Series C Preferred Stock, or Subsidiary Series D Preferred
Stock into which the stock theretofore represented by the certificate so
surrendered shall have been converted in accordance with the paragraph above.
(c) Each share, if any, of capital stock held in Parent's treasury at
the Effective Time shall automatically be cancelled.
(d) At the Effective Time, the 100 shares of Subsidiary Common Stock
presently issued and outstanding and held by Parent shall be cancelled.
8. Dissenter's Rights. Any holder of record of shares of Parent's
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capital stock who shall, at or before the taking of the vote of Parent
stockholders to adopt this Agreement of Merger and the Merger contemplated
hereby, have filed with Subsidiary written objection and not have voted for the
Merger and who shall have, after the taking of such vote, properly demanded
payment for such shares in accordance with Section 89 of the MBCL, shall not
thereafter have any rights as a stockholder except as provided in Section 96 of
the MBCL.
9. Abandonment. This Agreement may be terminated and the Merger
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abandoned by the mutual consent of the Boards of Directors of Parent and
Subsidiary at any time prior to the filing date with the Delaware Secretary of
State and the Massachusetts Secretary of State, whether or not at the time of
such termination and abandonment this Agreement has been adopted by the
stockholders of Parent.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute this Agreement of Merger effective as of the date first
above written.
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VIVID TECHNOLOGIES, INC.,
a Massachusetts corporation.
By: ________________________________
S. Xxxxx Xxxxxxxxxx, President.
A T T E S T:
___________________________
Xxxxxxxx X. Xxxx,
Clerk.
VIVID TECHNOLOGIES, INC.,
a Delaware corporation.
By: ________________________________
S. Xxxxx Xxxxxxxxxx, President
A T T E S T:
___________________________
Xxxxxxxx X. Xxxx, Secretary
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