EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of May
3, 1999, by and between ▇▇▇▇▇▇▇ Manufacturing Co., Inc., a California
corporation (the "California Company") and ▇▇▇▇▇▇▇ Manufacturing Co.,
Inc., a Delaware corporation (the "Delaware Company"),
W I T N E S E T H:
WHEREAS, the California Company is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
California and, on the date of this Agreement, has authority to issue
twenty-five million (25,000,000) shares, including twenty million
(20,000,000) shares of common stock, no par value ("California Common
Stock"), and five million (5,000,000) shares of preferred stock, no par
value ("California Preferred Stock"); and
WHEREAS, on the date of this Agreement the California Company had
issued and outstanding: 11,837,155 shares of California Common Stock and
no shares of California Preferred Stock; and
WHEREAS, the Delaware Company is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Delaware and, on the date of this Agreement, has authority to issue
twenty-five million (25,000,000) shares, including twenty million
(20,000,000) share of common stock, $.01 par value per share ("Delaware
Common Stock"), and five million shares of preferred stock, $.01 par value
per share ("Delaware Preferred Stock"); and
WHEREAS, the Delaware Company currently has one hundred (100) shares
of its common stock issued and outstanding, all of which are owned by the
California Company, and no shares of its preferred stock issued and
outstanding; and
WHEREAS, the respective Boards of Directors of the California Company
and the Delaware Company have determined that it is advisable and in the
best interests of each such corporation that the California Company be
merged with and into the Delaware Company upon the terms and subject to
the conditions provided in this Agreement for the purpose of effecting a
reincorporation of the California Company in the State of Delaware and
have, by resolutions duly adopted, approved this Agreement and directed
that it be submitted to a vote of their respective shareholders and
executed by the undersigned officers;
NOW THEREFORE, the parties agree as follows:
ARTICLE 1
Definitions
When used in this Agreement (and any Exhibit in which such terms are
not otherwise defined) the following terms shall have the following
meanings, respectively:
1.1 "California Law" shall mean the California Corporations Code as
currently in effect on the date of this Agreement.
1.2 "Delaware Law" shall mean the Delaware General Corporation Law
as currently in effect on the date of this Agreement.
1.3 "Effective Time" shall mean the date and time when the Merger
shall have become effective, in accordance with Section 2.2.
1.4 "Merger" shall mean the merger of the California Company with
and into the Delaware Company.
1.5 "Surviving Corporation" shall mean the Delaware Company from and
after the Effective Time.
ARTICLE 2
Merger
2.1 Filings and Effectiveness. The Merger shall become effective
when the following actions shall have been completed:
(i) This Agreement and the Merger shall have been adopted and
approved by the sole stockholder of the Delaware Company and the
shareholders of the California Company;
(ii) All of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied or duly
waived by the party entitled to satisfaction thereof;
(iii) An executed Certificate of Merger shall have been filed
with the Secretary of State of the State of Delaware; and
(iv) An executed counterpart of this Agreement, along with a
certificate of a duly authorized officer of both the California Company
and the Delaware Company, each meeting the requirements of California Law,
shall have been submitted for filing with the Secretary of State of the
State of California.
2.2 Merger. The Merger shall become effective for all purposes of
Delaware law when proper documentation has been filed with the Secretary
of State of the State of Delaware in accordance with Section 2.1. The
Merger shall become effective for purposes of California law as of the
time the Merger becomes effective in Delaware, once proper documentation
has been filed with the Secretary of State of the State of California in
accordance with Section 2.1. When the Merger becomes effective, the
California Company shall merge with and into the Delaware Company, the
separate existence of the California Company shall cease, and the Delaware
Company shall continue in existence under Delaware Law.
2.3 Effects. At the Effective Time:
(i) the California Company shall be merged with and into the
Delaware Company and the separate existence of the California Company
shall cease;
(ii) the Certificate of Incorporation of the Delaware Company
in effect at the Effective Time shall continue as the Certificate of
Incorporation of the Surviving Corporation;
(iii) the Bylaws of the Delaware Company in effect at the
Effective Time shall continue as the Bylaws of the Surviving Corporation;
(iv) each director of the California Company immediately prior
to the Effective Time shall become a director of the Surviving
Corporation, each to serve in such class, and for such term, as shall be
indicated in the proxy statement to be submitted to the shareholders of
the California Company in connection with the 1999 annual meeting of
shareholders of the California Company;
(v) each officer of the Delaware Company in office immediately
prior to the Effective Time shall remain as an officer in the same
capacity of the Surviving Corporation;
(vi) each share of California Common Stock outstanding
immediately prior to the Effective Time shall be converted into one share
of Delaware Common Stock pursuant to Article 3 below, with an amount equal
to the par value of the Delaware Common Stock to be allocated to the
stated capital account of the Delaware Company, and all amounts in excess
of such amount shown on the books of the California Company to be
allocated to retained earnings or the capital surplus account, in
accordance with good accounting practice;
(vii) without further transfer, act or deed, the separate
existence of the California Company shall cease and the Surviving
Corporation shall possess all of the rights, privileges, powers and
franchises of a public as well as of a private nature, and shall be
subject to all the restrictions, disabilities and duties of the California
Company; and each and all of the rights, privileges, powers and franchises
of the California Company, and all property, real, personal and mixed, and
all debts due to the California Company on whatever account, stock
subscriptions and other things in action or belonging to the California
Company shall be vested in the Surviving Corporation; and all property,
rights, privileges, powers and franchises, and each and every other
interest of the California Company shall be thereafter as effectually the
property of the Surviving Corporation as they were of the California
Company, and the title to any real estate vested by deed or otherwise,
under the laws of the State of Delaware, in the California Company shall
not revert or be in any way impaired by reason of the Merger; and all
rights of creditors of the California Company and all liens upon any
property of the California Company shall be preserved unimpaired and all
debts, liabilities and duties of the California Company 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.
2.4 Further Assurances. The California Company agrees that if, at
any time after the Effective Time, the Surviving Corporation shall
consider or be advised that any further deeds, assignments or assurances
are necessary or desirable to vest, perfect or confirm in the Surviving
Corporation title to any property or rights of the California Company, the
Surviving Corporation and its proper officers and directors may execute
and deliver all such proper deeds, assignments and assurances and do all
other things necessary or desirable to vest, perfect or confirm title to
such property or rights in the Surviving Corporation and otherwise to
carry out the purposes of this Agreement, in the name of the California
Company or otherwise.
ARTICLE 3
Conversion of Shares
3.1 Conversion of Shares. At the Effective Time:
(i) each share of California Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into one share of Delaware Common Stock; and
(ii) each share of Delaware Common Stock issued and outstanding
immediately prior to the Effective Time shall be canceled and retired and
no shares shall be issued in the Merger in respect thereof.
3.2 Stock Certificates. At and after the Effective Time, all of the
outstanding certificates which immediately prior to the Effective Time
represent shares of California Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent, the shares of
Delaware Common Stock into which the shares of California Common Stock
formerly represented by such certificates have been converted as provided
in this Agreement. The registered owner on the books and records of the
Delaware Company or its transfer agents of any such outstanding stock
certificate shall, until such certificate shall have been surrendered for
transfer or otherwise accounted for to the Delaware Company 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 Delaware Common Stock evidenced by such
outstanding certificate as above provided.
3.3 Stock Options. Each right or option to purchase shares of
California Common Stock granted under the 1994 Employee Stock Bonus Plan,
the 1994 Stock Option Plan, the 1995 Independent Director Stock Option
Plan or the Employee Stock Purchase Plan (collectively, the "Plans") of
the California Company or granted irrespective and not in connection with
either of the Plans, which is outstanding immediately prior to the
Effective Time, shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into and become an option to
purchase the same number of shares of Delaware Common Stock at the same
option price per share, and upon the same terms and subject to the same
conditions as set forth in the Plans, as in effect at the Effective Time.
The same number of shares of Delaware Common Stock shall be reserved for
purposes of the Plans as is equal to the number of shares of California
Common Stock so reserved as of the Effective Time. As of the Effective
Time, the Delaware Company hereby assumes the Plans and any and all
obligations of the California Company under such Plans, including the
outstanding options granted pursuant to the Plans.
3.4 Validity of Delaware Common Stock. All shares of Delaware
Common Stock into which California Common Stock is to be converted
pursuant to the Merger shall not be subject to any statutory or
contractual preemptive rights, shall be validly issued, fully paid and
nonassessable and shall be issued in full satisfaction of all rights
pertaining to such California Common Stock.
3.5 Rights of Former Holders. From and after the Effective Time, no
holder of certificates which evidenced California Common Stock immediately
prior to the Effective Time shall have any rights with respect to the
shares formerly evidenced by those certificates, other than to receive the
shares of Delaware Common Stock into which such California Common Stock
shall have been converted pursuant to the Merger.
ARTICLE 4
Covenants To Be Performed Prior to Closing Date
4.1 Consents. Each of the California Company and the Delaware
Company shall use its best efforts to obtain the consent and approval of
each person (other than shareholders of the California Company in their
capacities as such) whose consent or approval shall be required in order
to permit consummation of the Merger.
4.2 Governmental Authorizations. Each of the California Company and
the Delaware Company shall cooperate in filing any necessary reports or
other documents with any federal, state, local or foreign authorities
having jurisdiction with respect to the Merger.
ARTICLE 5
Conditions
5.1 Conditions to Obligations of the California Company and the
Delaware Company. The obligations of the California Company and the
Delaware Company to consummate the Merger are subject to satisfaction of
the following conditions:
5.1.1 Authorization. The holders of a majority of the
California Common Stock shall have approved and adopted this Agreement and
the Merger in accordance with California Law. All necessary action shall
have been taken to authorize the execution, delivery and performance of
this Agreement by the California Company and the Delaware Company. The
California Company and the Delaware Company shall have full power and
authority to consummate the Merger.
5.1.2 Consents and Approvals. All authorizations, consents and
approvals (contractual or otherwise) of any state, federal, local or
foreign government agency, regulatory body or official or any person
(other than the California Company or the Delaware Company) necessary for
the valid consummation of the Merger in accordance with this Agreement
shall have been obtained and shall be in full force and effect.
ARTICLE 6
Miscellaneous
6.1 Waiver and Amendment. This Agreement may be amended by action
of the respective Boards of Directors of the California Company and the
Delaware Company without action by the respective shareholders and
stockholder of the parties, except that (i) any amendments to Section 3.1,
(ii) any amendment changing the terms, rights, powers or preferences of
Delaware Common Stock or Delaware Preferred Stock, or (iii) any amendment
altering any terms of this Agreement if such alteration would adversely
affect the holders of any class or series of the capital stock of the
California Company or the Delaware Company must be approved by the holders
of a majority of the California Common Stock.
6.2 Termination. This Agreement may be terminated and the Merger
and other transactions provided for by this Agreement abandoned at any
time prior to the Effective Time, whether before or after adoption and
approval of this Agreement by the shareholders of the California Company,
by action of the Board of Directors of the California Company if the Board
determines that the consummation of the transactions contemplated by this
Agreement would not, for any reason, be in the best interests of the
California Company and its shareholders.
6.3 Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the Merger and supersedes all prior and
concurrent arrangements, letters of intent or understandings relating to
the Merger.
6.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which when
taken together shall constitute one and the same agreement. This
Agreement shall become effective when one or more counterparts has been
signed by each of the parties and delivered to each of the parties.
6.5 Headings. The article, section and paragraph headings in this
Agreement are intended principally for convenience and shall not, by
themselves, determine rights and obligations of the parties to this
Agreement.
6.6 No Waiver. No waiver by any part of any condition, or the
breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be
a further or continuing waiver of any such condition or breach or a waiver
of any other condition or breach of any other term or covenant contained
in this Agreement.
6.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, and so far
as applicable, the merger provisions of the California General
Corporations Code.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
▇▇▇▇▇▇▇ MANUFACTURING CO., INC.,
a California corporation
By: /s/▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer,
Secretary and Treasurer
▇▇▇▇▇▇▇ MANUFACTURING CO., INC.,
a Delaware corporation
By: /s/▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer,
Secretary and Treasurer
