AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of May 15, 1997 (the "Agreement")
among Xxxxxx Technologies, Inc., a New York corporation (the "Corporation"),
Xxxxxx Technologies, Inc., a Delaware corporation ("Xxxxxx Delaware"), and STI
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Xxxxxx Delaware ("STI" and, together with the Corporation, the "Constituent
Corporations").
WITNESSETH:
WHEREAS, the Boards of Directors of the Corporation, Xxxxxx Delaware
and STI desire that STI merge into the Corporation pursuant to the terms and
conditions of this Agreement and in accordance with Section 252 of the General
Corporation Law of the State of Delaware ("DGCL") and Section 907 of the New
York Business Corporation Law (the "NYBCL"), and have adopted and approved this
Agreement in accordance with Section 902 of the NYBCL and Section 252 of the
DGCL, respectively;
WHEREAS, Xxxxxx Delaware, as the sole stockholder of STI, has adopted
and approved this Agreement in accordance with Section 252 of the DGCL;
WHEREAS, the Corporation intends to solicit, at its 1997 annual meeting
of shareholders (the "Annual Meeting"), the approval of this Agreement by the
holders of the Corporation Common Stock (as defined below) entitled to vote
thereon in accordance with Sections 903 and 907 of the NYBCL;
NOW, THEREFORE, in consideration of the premises and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
THE MERGER
Section 1.1. The Merger. STI shall merge into the Corporation (the
"Merger"). The Corporation shall be the surviving corporation (the "Surviving
Corporation") in the Merger and, at the Effective Time (as defined below), the
separate existence of STI shall cease. The corporate existence of the
Corporation, with its purposes, powers and objects, shall continue unaffected
and unimpaired by the Merger and, as the surviving corporation, (i) it shall
possess all the rights, privileges, immunities, powers and purposes of each of
the Constituent Corporations, (ii) all property, real and personal, causes of
action and every other asset of each of the Constituent Corporations shall vest
in the Corporation and (iii) it shall assume and be liable for all the
liabilities, obligations and penalties of each of the Constituent Corporations
as and to the extent provided in Section 259 of the DGCL and Section 906 of the
NYBCL.
Section 1.2. The Effective Time. The Merger shall become effective
(the "Effective Time") upon the filing of (i) a certificate of merger executed
by the Corporation with the Secretary of State of the State of Delaware pursuant
to Section 253 of the DGCL and (ii) a certificate of merger executed by the
Constituent Corporations with the Secretary of State of the State of New York
pursuant to Sections 904 and 907 of the NYBCL.
Section 1.3. Certificate of Incorporation. The Certificate of
Incorporation of the Corporation as of the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation after the Effective
Time until duly amended.
Section 1.4. By-Laws. The By-Laws of the Corporation as of the
Effective Time shall be the By-Laws of the Surviving Corporation after the
Effective Time until duly amended.
Section 1.5. Officers and Directors. At the Effective Time, the
directors and officers of the Corporation immediately prior to the Effective
Time shall be and constitute the directors and officers of the Surviving
Corporation immediately after the Effective Time, to serve in accordance with
the Certificate of Incorporation and By-Laws of the Surviving Corporation and
the NYBCL all as then in effect.
Section 1.6. Required Approvals. This Agreement is subject to
approval by the holders of two-thirds of all of the outstanding shares of Common
Stock, par value $0.01 per share, of the Corporation ("the Corporation Common
Stock") entitled to vote thereon at the Annual Meeting, in accordance with
Sections 903 and 907 of NYBCL (the "Corporation Shareholder Approval"). As of
May 1, 1997, 2,841,866 shares of the Corporation Common Stock were outstanding.
This Agreement has been adopted and approved by Xxxxxx Delaware, the sole
stockholder of STI, in accordance with Section 252 of the DGCL. As of May 1,
1997, 100 shares of common stock, par value $.01 per share, of STI (the "STI
Common Stock") were outstanding.
ARTICLE II
CONVERSION OF SHARES
Section 2.1 Effect of the Merger on Capital Stock. At the Effective
Time, by virtue of the Merger and without any action on the part of the
Constituent Corporations or the holders of any capital stock thereof:
(a) The Corporation Common Stock. Subject to Section 2.1(b), each
share of the Corporation Common Stock outstanding at the Effective Time shall,
subject to the terms and conditions of this Agreement, at the Effective Time, be
converted into the right to receive 2.8 shares of common stock, par value $0.01
per share, of Xxxxxx Delaware (the "Xxxxxx Delaware Common Stock"), except that
shares of the Corporation Common Stock held in the Corporation's treasury at the
Effective Time (if any) shall, by virtue of the Merger and without any action on
the part of the Corporation, Xxxxxx Delaware or STI, be canceled and no cash,
securities or other property shall be issued in the Merger in respect thereof.
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(b) Surrender and Exchange of the Corporation Common Stock; No
Fractional Shares. Subject to the provisions of Section 2.1(a), after the
Effective Time each holder of an outstanding certificate or certificates (the
"Old Certificates") which represented shares of Corporation Common Stock prior
to the Effective Time, upon surrender thereof to The American Stock Transfer &
Trust Company, the transfer agent for Corporation Common Stock and Xxxxxx
Delaware Common Stock (the "Exchange Agent"), shall be entitled to receive in
exchange therefor a certificate or certificates (the "New Certificates"), which
Xxxxxx Delaware agrees to make available to the Exchange Agent as soon as
practicable (but no more than ten (10) days) after the Effective Time,
representing the aggregate number of shares, rounded up to the nearest whole
share, of Xxxxxx Delaware Common Stock into and for which the shares of
Corporation Common Stock theretofore represented by such surrendered Old
Certificates have been converted pursuant to Section 2.1(a). No fractional
shares, and no certificates or scrip for fractional shares, of Xxxxxx Delaware
Common Stock will be issued, no cash, securities, rights or other properties
will be issued in respect of any fractional share of Corporation Common Stock or
Xxxxxx Delaware Common Stock arising out of such conversion or exchange and no
owner thereof shall be entitled to receive any dividends or distributions, to
vote or to any other rights as a stockholder in respect thereof. Until
surrendered and exchanged, each Old Certificate shall after the Effective Time
be deemed for all purposes to represent only the right to receive a New
Certificate representing the number of shares of Xxxxxx Delaware Common Stock,
rounded up to the nearest whole share, into and for which the shares of
Corporation Common Stock theretofore represented by such Old Certificate shall
have been converted pursuant to Section 2.1(a) and this Section 2.1(b).
Section 2.2 Corporation Common Stock Transfers. As of the Effective
Time, no transfer of shares of Corporation Common Stock outstanding prior to the
Effective Time shall be made on the stock transfer books of the Corporation. If,
after the Effective Time, Old Certificates are presented to Xxxxxx Delaware or
the Corporation for any purpose, they shall be exchanged pursuant to Section
2.1.
Section 2.3 Corporation Stock Options. Pursuant to Section 10 of the
Corporation's 1996 Employee Stock Option Plan (the "Plan"), the Plan is, as of
the Effective Time, hereby amended so that, at the Effective Time, (I) all
options to be granted under the Plan shall be granted only for the purchase of
shares of Xxxxxx Delaware Common Stock, (II) all Options (as defined in the
Plan) which are outstanding and not exercised immediately prior to the Effective
Time are automatically amended to purchase 2.8 shares of Xxxxxx Delaware Common
Stock for each share of Corporation Common Stock previously purchasable
thereunder (rounded up to the nearest whole share on the same basis as provided
in Section 2.1(b)), with the exercise price of each such outstanding but
unexercised option being accordingly reduced in similar proportion, and (III)
the number of shares of Xxxxxx Delaware Common Stock reserved for issuance under
the Plan is increased to 470,400. Xxxxxx Delaware hereby agrees, effective as of
the Effective Time, to assume the duties and obligations of Plan and to reserve
for issuance, at the Effective Time, an appropriate amount of shares of Xxxxxx
Delaware Common Stock to satisfy its obligations under the Plan. The Corporation
and Xxxxxx Delaware are authorized to make any amendments to all documents
relating to the Plan and any options granted or to be
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granted thereunder that are necessary to give effect to the transactions
contemplated by this Section 2.3.
Section 2.4 Corporation Warrants. All warrants issued by the
Corporation (the "Corporation Warrants") which are outstanding and not exercised
immediately prior to the Effective Time shall be converted into the right to
receive warrants to purchase 2.8 shares of Xxxxxx Delaware Common Stock for
each share of Corporation Common Stock previously purchasable thereunder
(rounded up to the nearest whole share on the same basis as provided in Section
2.1(b)), with the exercise price of such outstanding but unexercised warrant
being accordingly reduced in similar proportion (the "Xxxxxx Delaware
Warrants"). After the Effective Time each holder of an outstanding certificate
or certificates (the "Old Warrants") which represented the Corporation Warrants
prior to the Effective Time, upon surrender thereof to the Exchange Agent, shall
be entitled to receive in exchange therefor a certificate or certificates (the
"New Warrants"), which Xxxxxx Delaware agrees to make available to the
Exchange Agent as soon as practicable (but no more than ten (10) days) after
the Effective Time, representing the aggregate number of Xxxxxx Delaware
Warrants into and for which the Corporation Warrants theretofore represented by
such surrendered Old Warrants have been converted pursuant to this Section 2.4.
Until surrendered and exchanged, each Old Warrant shall after the Effective Time
be deemed for all purposes to represent only the right to receive a New Warrant
representing the number of Xxxxxx Delaware Warrants into and for which the
Corporation Warrants theretofore represented by such Old Warrant shall have been
converted pursuant to this Section 2.4.
Section 2.5 Capital Stock of Xxxxxx Delaware. All shares of STI
Common Stock outstanding at the Effective Time, by virtue of the Merger and
without any action on the part of STI, Xxxxxx Delaware or the Corporation, shall
at the Effective Time be converted into 100 shares of Corporation Common Dtock,
except that shares of capital stock of STI held in its treasury shall be
canceled.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties. STI and the Corporation
hereby represent and warrant to each other that it: (i) is a corporation duly
organized and in good standing in its jurisdiction of incorporation; (ii) has
obtained the approval of its board of directors to effect the Merger; and (iii)
has full corporate power and authority to execute, deliver and perform this
Agreement. Xxxxxx Delaware, as sole stockholder of STI, hereby represents and
warrants that: (i) it has approved this Agreement in accordance with the DGCL;
(ii) it is a corporation duly organized and in good standing in the State of
Delaware; and (iii) it has full corporate power and authority to execute,
deliver and perform this Agreement.
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ARTICLE IV
CLOSING CONDITIONS; THE CLOSING
Section 4.1. Closing Conditions. The consummation of the Merger and the
other transactions provided herein is conditioned upon the satisfaction of the
following conditions: (i) the Corporation Shareholder Approval shall have been
obtained; (ii) the consent of the commissioner of taxation and finance pursuant
to Section 907(f) of the NYBCL shall have been obtained; and (iii) there shall
not be any pending or threatened litigation, action or proceeding concerning the
Merger or any other transaction contemplated by this Agreement that, in the
judgment of the Board of Directors of the Corporation, would materially
adversely affect any Constituent Corporation or any right of their respective
equity holders. The parties shall use their commercially reasonable best efforts
to satisfy such conditions. The closing under this Agreement shall occur on a
date not more than ten business days following the satisfaction of such
conditions at a place mutually agreed by the parties.
ARTICLE V
TERMINATION OR ABANDONMENT OF MERGER
Section 5.1. Termination. This Agreement may be terminated and the
Merger abandoned at any time prior to the Effective Time by the Board of
Directors of the Corporation, if the Board of Directors of the Corporation shall
determine for any reason that the consummation of the transactions contemplated
hereby would be inadvisable or not in the best interests of the Corporation or
its shareholders.
ARTICLE VI
AMENDMENTS
Section 6.1. Amendments. At any time prior to the Effective Time, the
parties hereto may by written agreement amend, modify or supplement any
provision of this Agreement, provided that no such amendment, modification or
supplement may be made after the Corporation Shareholder Approval shall have
been obtained unless, in the sole judgment of the Board of Directors of the
Corporation, it would not adversely affect the rights and interests of the
Corporation's shareholders in any material respect.
ARTICLE VII
ACCOMPLISHMENT OF MERGER
Section 7.1. Further Assurances. The parties hereto each agree to
execute such documents and instruments and to take whatever action may be
necessary or desirable to consummate the Merger.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement and
Plan of Merger to be executed as of the day and date first above written.
XXXXXX TECHNOLOGIES, INC.,
a New York corporation
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
STI ACQUISITION CORP.,
a Delaware corporation
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
XXXXXX TECHNOLOGIES, INC.,
a Delaware corporation
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
The undersigned hereby certifies that the sole shareholder of STI
Acquisition Corp. has voted for the adoption of this Agreement.
STI ACQUISITION CORP.
/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Secretary
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