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EXHIBIT 10.20
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger is executed as of December
20, 1995, by and between Ultrak, Inc., a Colorado corporation ("Parent"), and
Ultrak, Inc., a Delaware corporation ("Subsidiary").
WITNESSETH:
WHEREAS, the authorized capital stock of Subsidiary consists
of 20,000,000 shares of Common Stock, $0.01 par value ("Subsidiary Common
Stock"), and 2,000,000 shares of Preferred Stock, $5.00 par value ("Subsidiary
Preferred Stock"), 195,351 shares of which have been designated Series A 12%
Cumulative Convertible Preferred Stock ("Subsidiary Series A Preferred Stock"),
of which 1,000 shares of Subsidiary Common Stock are issued and outstanding and
owned by Parent; and
WHEREAS, the authorized capital stock of Parent consists of
20,000,000 shares of Common Stock, no par value ("Parent Common Stock") and
2,000,000 shares of Preferred Stock, $5.00 par value ("Parent Preferred
Stock"), 195,351 shares of which have been designated Series A 12% Cumulative
Convertible Preferred Stock ("Parent Series A Preferred Stock"), of which
approximately 6,560,000 shares of Parent Common Stock and 195,351 shares of
Parent Series A Preferred Stock are issued and outstanding; and
WHEREAS, the respective boards of directors and shareholders
of Parent and Subsidiary deem it to be desirable and in the best interest of
the respective corporations that the two corporations merge into a single
corporation (the "Merger"), and, pursuant to resolutions duly adopted, such
boards of directors and shareholders have approved and adopted this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements and covenants contained herein, the parties hereto agree as
follows:
ARTICLE I
Section 1.1. In accordance with the provisions of the Colorado
Business Corporation Act and the Delaware General Corporation Law at the
Effective Time (defined below) of the Merger, Parent shall be merged into
Subsidiary, which shall be the surviving corporation (in its capacity as such
surviving corporation Subsidiary is hereinafter sometimes referred to as the
"Surviving Corporation", and Parent and Subsidiary are hereinafter sometimes
referred to collectively as the "Constituent Corporations"), and as such
Subsidiary shall continue to be governed by the laws of the State of Delaware.
Section 1.2. The Merger shall become effective on December 29,
1995 or such later date as the Articles of Merger, executed, adopted and
approved in accordance with the Delaware General Corporation Law, shall have
been filed with the Secretary of State of Delaware. The time when the Merger
shall become effective is herein called the "Effective Time." The actions
described above shall be conclusive evidence, for all purposes of this
Agreement, of compliance with all conditions precedent.
Section 1.3. Except as may otherwise be set forth herein, at
the Effective Time, the corporate existence and identity of Subsidiary, with
all its purposes, powers, franchises, privileges, rights and
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immunities shall continue under the laws of the State of Delaware, unaffected
and unimpaired by the Merger, and the corporate existence and identity of
Parent, with all its purposes, powers, franchises, privileges, rights and
immunities, shall be merged with and into Subsidiary and the Surviving
Corporation shall be vested fully therewith, and the separate corporate
existence and identity of Parent shall thereafter cease, except to the extent
continued by applicable law. At the Effective Time, the Surviving Corporation
shall have the following rights and obligations:
(a) The Surviving Corporation shall have
all the rights, privileges, immunities and powers, and shall
be subject to all of the duties and liabilities, of a
corporation organized under the laws of the State of Delaware.
(b) The Surviving Corporation shall
succeed to, without other transfer, and shall possess and
enjoy, all of the rights, privileges, immunities, powers,
purposes and franchises, of both a public and private nature,
of the Constituent Corporations and all property, real,
personal and mixed, and all debts due to either of the
Constituent Corporations on whatever account and all other
choses in action, and every other interest of or belonging to
either of the Constituent Corporations shall be deemed to be
transferred to and vested in the Surviving Corporation without
further act or deed, and shall thereafter be 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 said Constituent
Corporations shall not revert or be in any way impaired by
reason of the Merger.
(c) The Surviving Corporation shall
thenceforth be responsible and liable for all debts,
liabilities, obligations and duties of either of the
Constituent Corporations, and any claim existing or action or
proceeding pending by or against either Constituent
Corporation may be prosecuted as if the Merger had not
occurred, or the Surviving Corporation may be substituted in
its place. Neither the rights of creditors nor any liens upon
the property of either Constituent Corporation shall be
impaired by the Merger.
Section 1.4. If at any time the Surviving Corporation shall
deem or be advised that any further transfers, assignments, conveyances,
assurances in law or other acts or things are necessary or desirable to vest or
confirm in the Surviving Corporation the title to any property or assets of
either of the Constituent Corporations, each Constituent Corporation and its
proper officers and directors shall execute and deliver any and all such proper
transfers, assignments, conveyances and assurances in law, and shall do all
other acts and things as are necessary or proper to vest or confirm title to
such property and assets in the Surviving Corporation and to otherwise carry
out the purposes and intent of this Agreement.
ARTICLE II
Section 2.1. The Certificate of Incorporation of Subsidiary in
effect at the Effective Time shall constitute the Articles of Incorporation of
the Surviving Corporation until amended, altered or repealed in the manner
provided by law.
Section 2.2. The By-Laws of Subsidiary in effect at the
Effective Time shall be the By-Laws of the Surviving Corporation, until
amended, altered or repealed.
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Section 2.3. The directors of Subsidiary at the Effective Time
shall be the directors of the Surviving Corporation and shall hold office in
accordance with the By-Laws of the Surviving Corporation until the next annual
meeting of shareholders of the Surviving Corporation or until their respective
successors are elected and qualified.
Section 2.4. The officers of Subsidiary at the Effective Time
shall be the officers of the Surviving Corporation and shall hold office
subject to the Bylaws of the Surviving Corporation.
ARTICLE III
Section 3.1. At the Effective Time, the manner of exchanging
the outstanding Common Stock of the Constituent Corporations shall be as
follows:
(a) Each share of Parent Common Stock
outstanding immediately prior to the Effective Time, except
all shares of Parent Common Stock held by Parent in its
treasury, which shall be cancelled and no shares issued in
respect thereof, shall, at the Effective Time, by virtue of
the Merger and without action on the part of the holder
thereof, be converted into one share of the Subsidiary Common
Stock.
(b) Each share of Parent Series A
Preferred Stock outstanding immediately prior to the Effective
Time shall, at the Effective Time, by virtue of the Merger and
without action on the part of the holder thereof, be converted
into one share of the Subsidiary Series A Preferred Stock,
which is identical in all respects, including rights,
preferences and designations, to the Parent Series A Preferred
Stock.
(c) Each share of Subsidiary Common
Stock outstanding immediately prior to the Effective Time
shall, at the Effective Time, by virtue of the Merger and
without any action on the part of the holder thereof, be
cancelled and returned to the status of authorized but
unissued stock of the Surviving Corporation.
(d) No fractional shares of Subsidiary
Common Stock or Subsidiary Series A Preferred Stock and no
certificates or scrip certificates therefor shall be issued.
(e) All of the shares of Subsidiary
Common Stock and Subsidiary Series A Preferred Stock, when
delivered pursuant to the provisions of this Agreement, shall
be validly issued, fully paid and nonassessable.
(f) If any stock certificate evidencing
shares of Subsidiary Common Stock and/or Subsidiary Series A
Preferred Stock is requested to be issued in a name other than
that in which the surrendered Parent stock certificate is
registered, it shall be a condition of such issuance that the
surrendered stock certificate shall be properly endorsed in
blank or otherwise in proper form for transfer and that the
person requesting such exchange pay to the Surviving
Corporation any applicable transfer or other taxes or
establish to the satisfaction of the Surviving Corporation
that any such tax has been paid or is not payable.
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ARTICLE IV
Section 4.1. This Agreement may be executed by the parties
hereto in counterparts, each of which when so executed and delivered shall be
an original, but all of which shall constitute one instrument.
Section 4.2. Subject to applicable law, this Agreement may be
amended, modified or supplemented only by written agreement of Parent and
Subsidiary at any time prior to the Effective Time.
Section 4.3. This Agreement may be terminated at any time
prior to the Effective Time by mutual agreement of the parties hereto.
IN WITNESS WHEREOF, each of the Constituent Corporations has
caused this Agreement to be executed on its behalf by its respective officers
hereunto duly authorized as of the date first above written.
ULTRAK, INC.
a Colorado corporation
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx, President
ULTRAK, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx, President
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