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EXHIBIT 2
AGREEMENT OF MERGER
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER ("Merger Agreement"), dated as of December___,
1996 is between Orbis, Inc., a Rhode Island corporation ("Orbis") and Industrial
Imaging Corporation, Delaware corporation ("Industrial Imaging"). Orbis and
Industrial Imaging are hereafter sometimes collectively referred to as the
"Constituent Corporation."
WHEREAS, Orbis is a corporation duly organized and existing under the
laws of the State of Rhode Island;
WHEREAS, Industrial Imaging is a corporation duly organized and
existing under the laws of the State of Delaware;
WHEREAS, on the date of this Merger Agreement, Orbis, Inc. has
authority to issue 10,000,000 shares of Common Stock, $.01 par value per share
("Orbis Common Stock"), 9,450,000 shares of which are issued and outstanding;
WHEREAS, on the date of this Merger Agreement, Industrial Imaging has
authority to issue twenty million (20,000,000) shares of Common Stock, $.01 par
value per share ("Industrial Imaging Common Stock"), of which one (1) share is
issued and outstanding, one million (1,000,000) shares of Preferred Stock, $.01
par value per share, of which no shares are issued and outstanding;
WHEREAS, the respective Boards of Directors of Orbis and Industrial
Imaging have determined that it is advisable and in the best interests of each
of such corporations to merge in a tax-free reorganization with and into
Industrial Imaging upon the terms and subject to the conditions of this Merger
Agreement; and
WHEREAS, the respective Boards of Directors of Orbis and Industrial
Imaging have, by resolutions duly adopted, approved this Merger Agreement, and
the shareholders of Orbis have duly approved this Merger Agreement, by majority
of the shareholders voting at a Special Meeting of Stockholders on December 5,
1996 and the sole shareholder of Industrial Imaging has, by unanimous written
consent dated __________, 1996, duly approved this Merger Agreement;
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NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Orbis and Industrial Imaging hereby agree as follows:
1. Merger. Orbis will be merged with and into Industrial Imaging (the
"Merger"), and Industrial Imaging shall be the surviving corporation
(hereinafter sometimes referred to as the "Surviving Corporation"). The merger
shall become effective upon the time and date of filing of such documents as may
be required under applicable law ("Effective Time").
2. Governing Documents. The Certificate of Incorporation and the Bylaws
of Industrial Imaging as in effect immediately prior to the Effective Time,
shall be the Certificate of Incorporation of the Surviving Corporation without
change or amendment until thereafter amended in accordance with the provisions
thereof and applicable laws.
3. Succession. At the Effective Time, the separate corporate existence
of Orbis shall cease, and Industrial Imaging shall possess all the rights,
privileges, powers and franchises of a public and private nature and be subject
to all the restrictions, disabilities and duties of Orbis; and all and singular,
the rights, privileges, powers and franchises of Orbis and all property, real,
personal and mixed, and all debts due to Orbis on whatever account, as well as
for share subscriptions and all other things in action or belonging to Orbis
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest shall be
thereafter as effectually the property of the Surviving Corporation as they were
of Orbis, and the title to any real estate vested by deed or otherwise, under
the laws of the State of Delaware, in Orbis shall not revert or be in any way
impaired by reason of the General Corporation Law of the State of Delaware; but
all rights of creditors and all liens upon any property of Orbis shall be
preserved unimpaired; and all debts, liabilities and duties of Orbis 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 Orbis, its shareholders, Board of Directors and
committees thereof, officers and agents which were valid and effective
immediately prior to the Effective Time, shall be taken for all purposes as the
acts, plans, policies, agreements, arrangements, approvals and authorizations of
Industrial Imaging and shall be as effective and binding thereon as the same
were with respect to Orbis.
4. Further Assurances. From time to time, as and when required by
Industrial Imaging or by its successors and assigns, there shall be executed and
delivered on behalf of Orbis 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 or necessary in order to vest, perfect or confirm, of record or
otherwise, in Industrial Imaging the title to and possession of all property,
interest, assets, rights, privileges, immunities, powers, franchises and
authority of Orbis and otherwise to carry out the purposes of this Merger
Agreement, and the officers and directors of Industrial Imaging are fully
authorized in the name and on behalf of Orbis to take any and all such action
and to execute and deliver any and all deeds and other instruments.
5. Conversion of Shares. At the Effective Time, by virtue of the Merger
and without any action on the part of the holder thereof:
(a) Every eighteen (18) shares of Orbis Common Stock issued and
outstanding immediately prior to the Effective Time shall be changed
and converted into one (1) fully-paid and non-assessable share of
Common Stock of Industrial Imaging.
(b) The one (1) share of Industrial Imaging Common Stock presently
issued and outstanding shall be given to Industrial Imaging as a
capital contribution and shall be cancelled and resume the status of
authorized and unissued shares of Industrial Imaging Common Stock, and
no shares of Industrial Imaging Common Stock or other securities shall
be issued in respect thereof.
6. Conversion of Warrants and Options. At the Effective Time, by virtue
of the Merger
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and without any action on the part of the holder thereof, unless the Board of
Directors determines otherwise, each option and/or warrant to purchase Orbis
Common Stock outstanding immediately prior to the Effective Time shall be
changed and converted into an option and/or warrant to purchase Industrial
Imaging Common Stock on the basis of the following ratio:
(a) Options to purchase eighteen (18) shares of Orbis Common Stock
shall be converted into an option to purchase one (1) share of
Industrial Imaging Common Stock.
(b) Warrants to purchase eighteen (18) shares of Orbis Common
Stock shall be converted into a warrant to purchase one (1) share of
Industrial Imaging Common Stock.
7. Stock Certificates. At and after the Effective Time, all of the
outstanding certificates which immediately prior to the Effective Time
represented shares of Orbis Common Stock shall be presented to Industrial
Imaging to be exchanged for certificates representing shares of Industrial
Imaging Common Stock as converted as herein provided. The registered owner of
any such outstanding certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to Industrial Imaging or its
transfer agents, have and be entitled to exercise any voting and other rights
with respect to and to receive any dividends and other distributions upon the
shares of Industrial Imaging Common Stock evidenced by such outstanding
certificate as above provided. All certificates representing shares of
Industrial Imaging outstanding immediately prior to the Effective Time shall be
surrendered to Industrial Imaging for cancellation; at and after the Effective
Time, the shares represented by such certificates shall be deemed to be
cancelled whether or not the certificates have been surrendered or otherwise
accounted for.
8. Employee Benefit Plans. As of the Effective Time, Industrial Imaging
hereby assumes all obligations of Orbis under all employee benefit plans in
effect, if any, as of the Effective Time or with respect to which employee
rights or accrued benefits are outstanding, if any, as of the Effective Time.
9. Amendment. Subject to applicable law, this Merger Agreement may be
amended, modified or supplemented by written agreement of the parties hereto at
any time prior to the Effective Time with respect to any of the terms contained
herein.
10. Abandonment. At any time prior to the Effective Time, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either Orbis or Industrial Imaging, or either of them,
notwithstanding approval of this Merger Agreement by the stockholders of any of
said corporations if circumstances arise which, in the opinion of the Board of
Directors of Orbis or Industrial Imaging make the Merger inadvisable.
11. Counterparts. In order to facilitate the filing and recording of
this Merger Agreement, the same may be executed in two or more counterparts,
each of which shall be deemed to be an original and the same agreement.
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IN WITNESS WHEREOF, Orbis and Industrial Imaging have caused this
Merger Agreement to be signed by their respective duly authorized officers as of
the date first above written.
Orbis, Inc.
a Rhode Island corporation
By:
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Xxxxxxxx Xxxxxxxx, President
WITNESS:
Xxxxxx X. Xxxxxxx, Secretary
Industrial Imaging Corporation
a Delaware corporation
By:
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Xxxx X. Xxxxxx, Ph.D., President
WITNESS:
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Xxxx X. Xxxxxx, Ph.D., Secretary
