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EXHIBIT 10.2
EXCHANGE AGREEMENT
This Exchange Agreement (this "AGREEMENT") is made as of April
23, 1996, by and among Xxxx X. Xxxxxx, as Trustee of the Xxxxxx Living Trust
u/d/t dated as of January 12, 1995, Xxxxxx X. Xxxxxxx, as Trustee of the Xxxxxxx
1986 Trust u/d/t dated as of October 23, 1986, Xxx Xxxx, an individual, Xxxxxx
X. Xxxxxx, Xx., an individual, (collectively, the "SHAREHOLDERS") and Xxxxx
Instruments Corp., a California corporation (the "COMPANY").
RECITALS
A. The Company is authorized to issue up to 15,000,000 shares of
Series A Common Stock, no par value (the "SERIES A COMMON STOCK"). The
Shareholders own 100% of the Company's outstanding Series A Common Stock.
B. The Company is also authorized to issue up to 5,000,000 shares
of Series B Common Stock, no par value, having the rights, preferences,
privileges and restrictions set forth in the Company's Restated Articles of
Incorporation, none of which has been issued by the Company (the "SERIES B
COMMON STOCK").
C. The parties desire to enter into this Agreement to effect the
transfer of the Shareholders' shares of Series A Common Stock to the Company in
exchange for shares of Series A Common Stock and Series B Common Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
TERMS OF EXCHANGE
1.1 EXCHANGE OF SECURITIES. Each of the Shareholders hereby
exchanges with the Company all of such Shareholder's shares of Series A Common
Stock as is set forth on Schedule A attached hereto opposite such Shareholder's
name under the heading "Number of Series A Shares To Be Contributed," solely in
exchange for (i) the number of shares of Series A Common Stock as is set forth
opposite such Shareholder's name under the heading "Number of Series A Shares To
Be Received" and (ii) the number of shares of Series B Common Stock as is set
forth opposite such Shareholder's name under the heading "Number of Series B
Shares To Be Received."
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1.2 DELIVERY. Upon the execution of this Agreement, each
Shareholder shall deliver to the Company the share certificate representing the
number of Series A Shares To Be Contributed, and the Company shall return two
stock certificates to such Shareholder as follows: (i) one or more certificates
representing the Number of Series A Shares To Be Received under the exchange
provided in Section 2.1; and (ii) one or more certificates representing the
Number of Series B Shares To Be Received under the exchange as provided in
Section 2.1.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER
Each Shareholder hereby represents and warrants to, and agrees
with, the Company as follows:
2.1 OWNERSHIP. The Shareholder is the sole record and
beneficial owner of the number of shares of Series A Common Stock of the Company
set forth opposite such Shareholder's name in Schedule A hereto under the
heading "Number of Series A Shares To Be Contributed," and such shares are owned
by such Shareholder free and clear of all liens, security interests, charges,
claims or other encumbrances whatsoever. Except as provided in that certain
Amended and Restated Stock Transfer and First Refusal Agreement ("Shareholder
Agreement") dated as of January 31, 1995 by and between the Company and each of
the Shareholders, the Shareholder represents and warrants that there are no
outstanding warrants, calls, options, contracts or other agreements, commitments
or understandings of any kind, whether oral or written, with respect to any of
such Shareholder's shares. Each Shareholder hereby waives the applicability, in
all respects, of the Shareholder Agreement to the transactions contemplated
hereby.
2.2 AUTHORIZATION. The Shareholder has full power and
authority to enter into this Agreement and to perform such Shareholder's
obligations hereunder. When executed and delivered by the Shareholder, this
Agreement will constitute the valid and legally binding obligation of such
Shareholder, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application relating to or affecting the enforcement of creditors'
rights.
2.3 NO CONFLICT. Except for the Shareholder Agreement (which
each Shareholder waives any breach thereof resulting from the terms and
conditions of this Agreement), the execution, delivery and performance of this
Agreement by the Shareholder will not (a) conflict with or result in any
violation of or constitute a default under any agreement, judgment, decree,
order, law or regulation by which such Shareholder or any of such
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Shareholder's properties or assets is or may be bound, or (b) require any
consent, approval, authorization, declaration, order or permit of, or filing,
registration, qualification or designation with or notification to, any
governmental or regulatory authority.
2.4 RESTRICTIONS ON TRANSFER. The Shareholder shall not sell
or otherwise dispose of any shares of Series A Common Stock or Series B Common
Stock received hereunder, except in compliance with the Securities Act of 1933,
as amended (the "Act"), the rules and regulations of the Securities and Exchange
Commission ("Commission") promulgated thereunder, any similar securities laws of
any state and the terms of this Agreement. The Shareholder acknowledges that the
shares of Series A Common Stock and Series B Common Stock received hereunder
will be subject to restrictions upon transfer imposed by applicable law and that
the Company has no obligation to register or qualify such shares under the laws
of any jurisdiction.
2.5 LEGEND ON CERTIFICATES. The Shareholder understands and
acknowledges that each stock certificate of the Company evidencing Series A
Common Stock or Series B Common Stock being transferred hereunder shall bear the
following (or a substantially equivalent) legend on the face or reverse side
thereof:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NO SALE, GIFT,
TRANSFER OR OTHER DISPOSITION THEREOF OR OF ANY INTEREST THEREIN SHALL
BE VALID OR EFFECTIVE UNLESS AND UNTIL SUCH SECURITIES ARE (I)
REGISTERED PURSUANT TO THE PROVISIONS OF SUCH ACT AND REGISTERED OR
QUALIFIED UNDER APPLICABLE STATE SECURITIES OR 'BLUE SKY' LAWS, OR (II)
EXEMPT FROM SUCH REGISTRATION."
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to, and agrees
with, the Shareholders, as follows:
3.1 ORGANIZATION AND GOOD STANDING. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California.
3.2 AUTHORIZATION. The Company has all necessary corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
When executed and delivered by the Company, this Agreement will constitute the
valid and legally binding obligation of the Company, enforceable
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in accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting the enforcement of creditors' rights.
3.3 NO CONFLICT. The execution, delivery and performance of
this Agreement by the Company will not (a) require any consent, approval,
authorization, declaration, order or permit of, or filing, registration,
qualification or designation with or notification to, any governmental or
regulatory authority, (b) conflict with or violate the Restated Articles of
Incorporation or Bylaws of the Company, or any agreement of the Company, or (c)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Company or pursuant to which any property or asset of the
Company is bound or affected.
3.4 VALID ISSUANCE OF THE SERIES A COMMON STOCK AND SERIES B
COMMON STOCK. The shares of Series A Common Stock and Series B Common Stock to
be transferred by the Company hereunder in exchange for the shares of the
outstanding Series A Common Stock will, upon issuance pursuant to the terms
hereof, be duly and validly issued, fully paid and nonassessable and will be
free from any liens or encumbrances. The Series A Common Stock and Series B
Common Stock, when issued and delivered pursuant to this Agreement, will be
issued in compliance with federal and all applicable state securities laws.
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 AMENDMENTS; WAIVERS. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto. Any party
hereto may (i) waive any inaccuracy in the representations and warranties
contained herein and (ii) waive compliance with any agreement or condition
contained herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby.
4.2 SUCCESSORS. This Agreement shall be binding upon, inure
solely to the benefit of, and be enforceable by, the parties hereto and their
successors and permitted assigns.
4.3 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
4.4 FURTHER ASSURANCES. The Shareholders and the Company will
execute and deliver all such further documents and instruments and take all such
further actions as may be necessary to consummate the transactions contemplated
hereby.
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4.5 ENTIRE AGREEMENT. This Agreement, constitutes the entire
agreement between the Shareholders and the Company with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between the Shareholders and the Company with respect to the
subject matter hereof.
4.6 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party.
4.7 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which when executed shall be deemed an original, but
all of which taken together shall constitute one and the same agreement.
4.8 ATTORNEYS' FEES. In the event of any controversy or
litigation arising out of or in connection with this Agreement, the prevailing
party in any such action or proceeding shall be entitled to recover from the
other party all costs and expenses of the action or suit, including reasonable
attorneys' fees, in addition to any other relief to which it may be entitled.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
XXXXX INSTRUMENTS CORP.,
a California corporation
By: /s/ XXXXXX XXXXXXX
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SHAREHOLDERS
/s/ XXXX X. XXXXXX
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XXXX X. XXXXXX, as Trustee of the
Xxxxxx Living Trust
/s/ XXXXXX X. XXXXXXX
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XXXXXX X. XXXXXXX, as Trustee of
the Xxxxxxx 1986 Trust
/s/ XXX EZRA
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XXX XXXX
/s/ XXXXXX X. XXXXXX, XX.
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XXXXXX X. XXXXXX, XX.
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0
XXXXXXXX X
Number of Number of Number of
Series A Shares Series A Shares Series B Shares
Shareholder To Be Contributed To Be Received To Be Received
Xxxxxx Living Trust 510 1,311,394 765,000
Xxxxxxx 1986 Trust 305 784,265 457,500
Xxx Ezra 118 303,421 177,000
Xxxxxx X. Xxxxxx,
Xx. 67 172,281 100,500
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TOTAL 1,000 2,571,361 1,500,000
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