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EXHIBIT 2.4
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is entered into
as of January 30, 1997, by and among Jaycor, a California corporation
("Jaycor"), Jaycor Emerging Technologies, Inc., a California corporation
("Holding Company"), and Jaycor Acquisition Company, a California corporation
("AcqCo").
R E C I T A L S
A. Holding Company is a wholly-owned subsidiary of Jaycor;
B. AcqCo is a wholly-owned subsidiary of Holding Company; and
C. The parties intend that, upon the terms and subject to the
conditions set forth below, AcqCo shall be merged with and into Jaycor, with
Jaycor as the surviving corporation (the "Merger"), pursuant to an Agreement and
Plan of Merger substantially in the form attached hereto as Exhibit A (the
"Agreement of Merger") and the applicable provisions of the laws of the State of
California.
A G R E E M E N T
NOW, THEREFORE, in reliance on the foregoing recitals and in and for
the consideration and mutual covenants set forth herein, the parties hereby
agree as follows:
1. Plan of Reorganization.
1.1 The Merger. Upon the terms and subject to the
conditions of this Agreement and the Agreement of Merger, Jaycor, AcqCo and
Holding Company shall effect the Merger by filing an executed copy of the
Agreement of Merger, together with other requisite documents, with the Secretary
of State of the State of California, in accordance with California law. The
Merger shall become effective upon the date specified in the Agreement of Merger
(the "Effective Date").
1.2 Effects of the Merger. On the Effective Date:
(a) AcqCo shall be merged with and into Jaycor,
Jaycor shall be the surviving corporation (the "Surviving Corporation"), and the
separate corporate existence of AcqCo shall cease;
(b) Each and every share of capital stock of
Jaycor issued and outstanding immediately prior to the Effective Date will, by
virtue of the Merger, be
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converted into the right to receive one share of the same class and series, and
bearing the same rights, preferences and privileges, of the capital stock of
Holding Company;
(c) Each option and warrant convertible into one
or more shares of capital stock of Jaycor outstanding immediately prior to the
Effective Date will, by virtue of the Merger, be converted into the right to
receive the same number, class and series of shares of the capital stock of
Holding Company, upon the same terms, exercise price, and subject to the same
conditions as are currently set forth in the option or warrant, as the case may
be;
(d) Each and every share of Jaycor held in the
Jaycor treasury will be canceled and no shares of capital stock of Holding
Company shall be issued in respect thereof;
(e) Each and every share of capital stock of
AcqCo outstanding immediately prior to the Effective Date shall be changed and
converted into and shall be one fully paid and nonassessable share of capital
stock of Jaycor;
(f) Each and every share of capital stock of
Holding Company outstanding immediately prior to the Effective Date will be
canceled and no securities shall be issued in respect thereof; and
(g) The Merger shall, from and after the
Effective Date, have all of the effects provided by California Law.
2. Abandonment. At any time prior to the Effective Date, this
Agreement may be terminated and the Agreement of Merger may be abandoned by the
Board of Directors of Jaycor (the "Board"), notwithstanding approval of this
Agreement by the shareholder of AcqCo if circumstances arise which, in the
opinion of the Board, make the Merger for any reason inadvisable.
3. Miscellaneous.
3.1 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of California.
3.2 Severability. If any provision of this Agreement, or
the application thereof, shall for any reason and to any extent be held to be
invalid or unenforceable, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall be interpreted so as best
to reasonably effect the intent of the parties hereto. The parties further agree
to replace such invalid or unenforceable provision of this Agreement with a
valid and enforceable provision which will achieve, to the extent possible, the
economic, business and other purposes of the invalid or unenforceable provision.
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3.3 Amendment and Waivers. Any term or provision of this
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to constitute
a waiver of any other default or any succeeding breach or default.
3.4 Absence of Third Party Beneficiary Rights. No
provisions of this Agreement are intended, nor shall be interpreted, to provide
or create any third party beneficiary rights or any other rights of any kind in
any client, customer, affiliate, shareholder, partner of any party hereto or any
other person or entity unless specifically provided otherwise herein, and,
except as so provided, all provisions hereof shall be solely between the parties
to this Agreement.
3.5 Entire Agreement. This Agreement, the exhibits
hereto, the documents referenced herein, and the exhibits thereto, constitute
the entire understanding and agreement of the parties hereto with respect to the
subject matter hereof and thereof and supersede all prior and contemporaneous
agreements or understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto and thereto. The
express terms hereof control and supersede any course of performance or usage of
the trade inconsistent with any of the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
JAYCOR JAYCOR EMERGING
TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ P. Xxxxx Xxxxxxx
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Xxxx X. Xxxxxx, President P. Xxxxx Xxxxxxx, President
JAYCOR ACQUISITION COMPANY
By: /s/ P. Xxxxx Xxxxxxx
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P. Xxxxx Xxxxxxx, President
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of
January 30, 1997, is entered into by and among JAYCOR, a California corporation
("Jaycor"), Jaycor Acquisition Company, a California corporation ("AcqCo" and,
together with Jaycor, the "Constituent Corporations"), and Jaycor Emerging
Technologies, Inc., a California corporation ("Holding Company").
RECITALS
A. Each of Jaycor, AcqCo and Holding Company is a corporation duly
organized and validly existing under the laws of the State of California.
B. At the date of this Agreement, Jaycor's authorized capital
stock consists of twelve million (12,000,000) shares of common stock, One and
Sixty-Seven One Hundredths Cents ($0.0167) par value ("Jaycor Common Stock"),
of which three million ninety-nine thousand one hundred eighty-eight
(3,099,188) shares are issued and outstanding.
C. At the date of this Agreement, AcqCo's authorized capital stock
consists of one thousand (1,000) shares of common stock, no par value ("AcqCo
Common Stock"), of which one hundred (100) shares are issued and outstanding,
all of which are owned by Holding Company.
D. At the date of this Agreement, Holding Company's authorized
capital stock consists of twelve million (12,000,000) shares of common stock,
One and Sixty-Seven Hundredths Cents ($0.0167) par value ("Holding Company
Common Stock"), of which one hundred (100) shares are issued and outstanding,
all of which are owned by Jaycor.
E. The respective boards of directors of Jaycor, and AcqCo and
Holding Company have determined that it is advisable and in the best interests
of each of such corporations and their respective shareholders for AcqCo to
merge with and into Jaycor upon the terms and subject to the conditions set
forth in this Agreement, pursuant to which the current shareholders of Jaycor
will become the shareholders of Holding Company, and Holding Company will
become the sole shareholder of Jaycor.
F. The respective boards of directors of Jaycor, AcqCo and Holding
Company have, by resolutions duly adopted, approved this Agreement.
G. Holding Company has approved this Agreement as the sole
shareholder of AcqCo.
H. Jaycor has approved this Agreement as the sole shareholder of
Holding Company.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Jaycor, AcqCo and Holding Company hereby agree as follows:
1. Merger. AcqCo shall be merged with and into Jaycor (the "Merger"),
and Jaycor shall be the surviving corporation (hereinafter sometimes referred
to as the "Surviving Corporation"). The date that the Merger shall become
effective (the "Effective Date") shall be the date of filing with the Secretary
of State of the State of California of a duly executed copy of this Agreement
and such other certificates and documents as may be required under the laws of
the State of California to effect the Merger.
2. Succession. On the Effective Date, the separate corporate existence
of AcqCo shall cease, and Jaycor shall possess all the rights, privileges,
powers and franchises and be subject to all the restrictions, disabilities and
duties of each of the Constituent Corporations, and each and all of the rights,
privileges, powers and franchises of each of the Constituent Corporations, and
all debts due to each of the Constituent Corporations on whatever account, and
all things in action belonging to each of the Contituent Corporations shall be
transferred to and vested in the Surviving Corporation and all property,
rights, privileges, powers and franchises, and all and every other interest
shall be thereafter 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; provided,
however, that the liabilities of the Constituent Corporations and of their
shareholders, directors and officers shall not be affected and all rights of
creditors and all liens upon any property of the Constituent Corporations 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 Jaycor, its shareholders, board
of directors and committees thereof, officers and agents which were valid and
effective immediately prior to the effective Date, shall be taken for all
purposes as the acts, plans, 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 Jaycor.
3. Articles and Bylaws. The articles of incorporation and bylaws of
Jaycor on the Effective Date shall continue to be the articles of incorporation
and
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bylaws of Jaycor as the Surviving Corporation without change or amendment until
further amended in accordance with the provisions hereof and applicable laws.
The articles of incorporation and bylaws of Holding Company on the Effective
Date shall continue to be the articles of incorporation and bylaws of Holding
Company without change or amendment until further amended in accordance with
the provisions hereof and applicable laws.
4. Directors and Officers. The directors and officers of Jaycor at the
Effective Date shall be and continue as directors and officers, holding the same
titles and positions, of Jaycor on the Effective Date, and after the Effective
Date shall serve in accordance with the bylaws of Jaycor until their successors
shall have been elected or qualified or until otherwise provided by law. On the
Effective Date, the directors and officers of Jaycor at the Effective Date shall
also become the directors and officers of Holding Company, holding the same
titles and positions, on and after the Effective Date, and shall serve in
accordance with the bylaws of Holding Company and until their successors shall
have been elected or qualified or until otherwise provided by law.
5. Further Assurances. From time to time, as and when required by the
Surviving Corporation or by its successors or assigns, to the extent permitted
by law, there shall be executed and delivered on behalf of AcqCo 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 AcqCo, and
to otherwise 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 AcqCo 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 Date, by virtue of the Merger
and without any action on the part of any holder thereof:
(a) each and every share of Jaycor Common Stock issued and
outstanding immediately prior to the Effective Date shall be changed and
converted into and shall be one fully paid and nonassessable share of Holding
Company Common Stock and shall bear the same rights, preferences and privileges;
(b) each and every share of Jaycor Common Stock held in the
Jaycor treasury will be canceled and retired and resume the status of
authorized and unissued shares of Jaycor Common Stock, and no shares of Holding
Company Common Stock or other securities shall be issued in respect thereof;
(c) each and every share of AcqCo Common Stock issued and
outstanding immediately prior to the Effective Date shall be changed and
converted
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into and shall be one fully paid and nonassessable share of Jaycor Common
Stock; and
(d) each and every share of Holding Company Common Stock issued
and outstanding immediately prior to the Effective Date shall be cancelled and
retired and resume the status of authorized and unissued shares of Holding
Company Common Stock or other securities shall be issued in respect thereof.
7. Stock Certificates. At and after the Effective Date, all of the
outstanding certificates which, immediately prior to the Effective Date,
represented shares of Jaycor Common Stock shall be deemed for all purposes to
evidence ownership of, and to represent, shares of capital stock of Holding
Company into which the shares of Jaycor Common Stock, formerly represented by
such certificates, have been converted as herein provided, and any and all
restrictions or legends on any shares or certificates representing shares of
Jaycor Common Stock shall continue and/or be placed on any shares and/or
certificates for shares of Holding Company into which such shares of Jaycor
Common Stock are convertible. The registered owner on the books and records of
Jaycor or its transfer agents of any such outstanding stock certificate shall,
until such certificate has been surrendered for transfer or otherwise accounted
for to Jaycor or its transfer agents, have and be entitled to exercise any
voting and other rights and with respect to, and to receive any dividend and
other distributions upon, the shares of capital stock of Holding Company
evidenced by such outstanding certificate as above provided.
8. Stock Option Plans; Warrants. As of the Effective Date, Holding
Company shall assume and continue each of Jaycor's stock option and employee
stock ownership plans (the "Stock Plans"), and all obligations of Jaycor
thereunder, including the outstanding options or awards or portions thereof
granted pursuant thereto. Each option, whether granted under the Stock Plans or
otherwise, and each warrant issued by Jaycor to purchase shares of Jaycor
Common Stock which is outstanding immediately prior to the Effective Date
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into and become an option or warrant, respectively, to
purchase the same number of shares of Holding Company Common Stock at the same
price per share, and upon the same exercise price, terms and subject to the
same conditions as set forth in the Stock Plans or the terms of the respective
warrants or options, all as in effect at the Effective Date. Immediately
subsequent to the Merger, the same number of shares of Holding Company Common
Stock shall be reserved for purposes of the Stock Plans and outstanding
warrants as is equal to the number, class and series of shares of Jaycor Common
Stock so reserved immediately prior to the Merger.
9. Abandonment. At any time prior to the Effective Date, this Agreement
may be terminated and the Merger may be abandoned by the board of directors of
Jaycor, notwithstanding approval of this Agreement by the shareholder of AcqCo
if, in the opinion of the board of directors of Jaycor, circumstances arise
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which, in the opinion of such board of directors, make the Merger for any
reason inadvisable.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
California.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective duly authorized officers as of the date first above written.
JAYCOR, JAYCOR ACQUISITION COMPANY,
a California corporation a California corporation
By: /s/ XXXX X. XXXXXX By: /s/ P. XXXXX XXXXXXX
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Xxxx X. Xxxxxx, President P. Xxxxx Xxxxxxx, President
By: /s/ XXXXXXX X. XXXXXXX By: /s/ P. XXXXX XXXXXXX
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Xxxxxxx X. Xxxxxxx, Secretary P. Xxxxx Xxxxxxx, Secretary
JAYCOR EMERGING
TECHNOLOGIES, INC.,
a California corporation
By: /s/ P. XXXXX XXXXXXX
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P. Xxxxx Xxxxxxx, President
By: /s/ P. XXXXX XXXXXXX
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P. Xxxxx Xxxxxxx, Secretary
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