AGREEMENT OF MERGER
OF
INTELLICOAT CORPORATION
AND
XXXXXXXX & SUN, INC.
--------------------
Pursuant to Section 252 of the General Corporation Law of
the State of Delaware and Section 23-1-40-5 of the
Indiana Business Corporation Law
--------------------
This Agreement of Merger, dated September 30, 1997 ("Merger
Agreement"), by and among Intellicoat Corporation, a Delaware corporation
("Acquiror" or the "Surviving Corporation") and a subsidiary of Landec
Corporation, a California corporation ("Landec"); and Xxxxxxxx & Sun, Inc., an
Indiana corporation ("Target").
RECITALS
A. Target was incorporated in the State of Indiana on September 8, 1986
and on the date hereof has 106.85421 shares of Common Stock outstanding ("Target
Common Stock"). The Target Common Stock is hereinafter referred to as the
"Target Shares."
B. Acquiror, Landec, Target and Target's principal shareholder (the
"Shareholder") have entered into an Agreement and Plan of Reorganization (the
"Agreement and Plan of Reorganization") providing for certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated hereby. The Merger Agreement and the Agreement and Plan of
Reorganization are intended to be construed together to effectuate their
purpose.
C. The Boards of Directors of Target, Acquiror and Landec deem it
advisable and in their mutual best interests and in the best interests of the
shareholders of Target, Acquiror and Landec, respectively, that Target be
acquired by Acquiror through a merger ("Merger") of Target with and into
Acquiror.
D. The Boards of Directors of Target, Acquiror, and Landec and the
shareholders of Target have approved the Merger.
AGREEMENTS
The parties hereto hereby certify and agree as follows:
1. Target shall be merged with and into Acquiror, and Acquiror shall be
the surviving corporation. Acquiror will be qualified to do business in Indiana
upon approval of Acquiror's Application for Admission.
2. The Merger shall become effective at such time (the "Effective Time"
of the Merger) as this Merger Agreement is filed with the Secretary of State of
the State of Indiana pursuant to Section 23-1-40-5 of the Indiana Business
Corporation Law and with the Secretary of the State of Delaware.
3. An executed copy of the Agreement and Plan of Reorganization is on
file at the principal place of business of Acquiror at the following address:
0000 Xxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
4. (a) At the Effective Time of the Merger, each share of Target Common
Stock of Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx (collectively, the "Minority
Shareholders") issued and outstanding shall be converted into the right to
receive 12,153.27818 shares of Landec Common Stock and $56,256.47 per share
(collectively the "Minority Interest Consisideration").
(b) At the Effective Time of the Merger, each share of Target Common
Stock of Xxxxxxx X. Xxxxxxxx (the "Majority Shareholder") issued and outstanding
shall be converted into the right to receive (i) 13,423.47818 shares of Landec
Common Stock, (ii) an amount of cash equal to $25,270.37 and (iii) a pro-rata
fraction (based on the shares of Target Common Stock owned by the Majority
Shareholder) of the Earn-Out Payment (as defined and further described in
Section 1.3 of the Agreement and Plan of Reorganization) (collectively, the
"Majority Interest Consideration" and collectively with the Minority Interest
Consideration, the "Merger Consideration").
5. Notwithstanding any other term or provision hereof but subject to
the proviso in the second sentences of Sections 4(a) and 4(b), no fractional
shares of Landec Common Stock shall be issued, but in lieu thereof each holder
of Target Shares who would otherwise, but for rounding as provided herein, be
entitled to receive a fraction of a share of Landec Common Stock shall receive
from Landec an amount of cash equal to the $5.50 multiplied by the fraction of a
share of Landec Common Stock to which such holder would otherwise be entitled.
The fractional share interests of each Target shareholder shall be aggregated,
so that no Target shareholder shall receive cash in an amount greater than the
value of one full share of Landec Common Stock.
6. The conversion of Target Shares into Merger Consideration as
provided by this Merger Agreement shall occur automatically at the Effective
Time of the Merger without action
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by the holders thereof. Each holder of Target Shares shall thereupon be entitled
to receive his, her or its portion of the Merger Consideration in accordance
with Section 4.
(a) At the Effective Time of the Merger, Acquiror shall make
available for exchange in accordance with Section 4, through such reasonable
procedures as Acquiror may adopt, the Merger Consideration issuable pursuant to
Section 4 in exchange for outstanding shares of Target Common Stock.
(b) No dividends on the Merger Consideration shall be paid to
the holder of any unsurrendered certificate until the holder of record of such
certificate shall surrender such certificate. Subject to the effect, if any, of
applicable escheat and other laws, following surrender of any certificate, there
shall be delivered to the person entitled thereto, without interest, the amount
of dividends theretofore paid with respect to the Merger Consideration so
withheld as of any date subsequent to the Effective Time of the Merger and prior
to such date of delivery.
(c) The Merger Consideration delivered upon the surrender for
exchange of Target Shares in accordance with the terms hereof shall be deemed to
have been delivered in full satisfaction of all rights pertaining to such Target
Shares. There shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of the Target Shares that were
outstanding immediately prior to the Effective Time of the Merger. If, after the
Effective Time of the Merger, certificates are presented to Acquiror for any
reason, they shall be cancelled and exchanged as provided in this Section 6.
7. At the Effective Time of the Merger, the separate existence of
Target shall cease, and Acquiror shall succeed, without other transfer, to all
of the rights and properties of Target and shall be subject to all the debts and
liabilities thereof in the same manner as if Acquiror had itself incurred them.
All rights of creditors and all liens upon the property of each corporation
shall be preserved unimpaired, provided that such liens upon property of Target
shall be limited to the property affected thereby immediately prior to the
Effective Time of the Merger.
8. This Merger Agreement is intended as a plan of reorganization within
the meaning of Section 368 of the Internal Revenue Code of 1986, as amended.
9. The Acquiror's Amended and Restated Certificate of Incorporation in
effect immediately prior to the Effective Time shall be the Amended and Restated
Certificate of Incorporation of Acquiror as the surviving corporation after the
Merger unless thereafter amended.
10. The Agreement and Plan of Reorganization and the Merger were
approved by all of the outstanding shareholders of Target in accordance with
Section 23-1-40-3 of the Indiana Business Corporation Law. The approval of
Acquiror's shareholders was not required to approve the Merger, pursuant to
Section 252 of the Delaware General Corporation Law.
11. (a) Notwithstanding the approval of this Merger Agreement by the
shareholders of Target, this Merger Agreement may be terminated at any time
prior to the
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Effective Time of the Merger by mutual agreement of the Boards of Directors of
Landec and Target.
(b) Notwithstanding the approval of this Merger Agreement by the
shareholders of Target, this Merger Agreement shall terminate forthwith in the
event that the Agreement and Plan of Reorganization shall be terminated as
therein provided.
(c) In the event of the termination of this Merger Agreement as
provided above, this Merger Agreement shall forthwith become void and there
shall be no liability on the part of Landec, Target, or Acquiror or their
respective officers or directors, except as otherwise provided in the Agreement
and Plan of Reorganization.
(d) This Merger Agreement may be signed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement.
(e) This Merger Agreement may be amended by the parties hereto any
time before or after approval hereof by the shareholders of Target, but, after
such approval, no amendments shall be made which by law require the further
approval of such shareholders without obtaining such approval. This Merger
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
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The parties have executed this Merger Agreement as of the date first
written above.
INTELLICOAT CORPORATION
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx, President and
Chief Executive Officer
Attest: /s/ Tae Xxx Xxxx
---------------------------------------
Tae Xxx Xxxx, Secretary
XXXXXXXX & SUN, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxxx, President and
Chief Executive Officer
Attest: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx, Secretary
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OFFICERS' CERTIFICATE
OF
XXXXXXXX & SUN, INC.
Xxxxxxx X. Xxxxxxxx and Xxxxx Xxxxxxxx President and Secretary,
respectively, of Xxxxxxxx & Sun, Inc., a corporation duly organized and existing
under the laws of the State of Indiana (the "Corporation"), do hereby certify:
1. That they are the duly elected, acting and qualified President and
the Secretary of the Corporation.
2. There is one authorized class of shares, consisting of shares of
1,000 Common Stock. There were 106.85421 shares of Common Stock outstanding and
entitled to vote on the Agreement of Merger in the form attached.
3. The Agreement of Merger in the form attached was duly approved by
the board of directors of the Corporation in accordance with the Indiana
Business Corporation Law.
4. Approval of the Agreement of Merger by the holders of 100% of the
outstanding shares of Common Stock was required. All of the outstanding shares
of the Corporation's shares entitled to vote on the Agreement of Merger voted to
approve the Agreement of Merger.
The undersigned declare under penalty of perjury that the statements
contained in the foregoing certificate are true of their own knowledge.
Executed in Monticello, Indiana, on September 30, 1997.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxx, President
/s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx, Secretary
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OFFICERS' CERTIFICATE
OF
INTELLICOAT CORPORATION
Xxxxxx Xxxxxxx, President and Secretary of Intellicoat Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Corporation"), does hereby certify:
1. That he is the duly elected, acting and qualified President and
Secretary of the Corporation.
2. There are two authorized classes of shares, consisting of 10,010,000
shares of Common Stock and 8,000,000 shares of Series A Preferred Stock. There
are no issued and outstanding shares of Common Stock, and the total number of
issued and outstanding shares of Series A Preferred Stock is 8,000,000.
3. The Agreement of Merger in the form attached was approved by the
board of directors of the Corporation in accordance with the General Corporation
Law of the State of Delaware.
4. No vote of the stockholders of the Corporation or Landec Corporation
(the sole shareholder of and parent of Intellicoat Corporation) was required.
The undersigned declares under penalty of perjury that the statements
contained in the foregoing certificate are true of his own knowledge. Executed
in Menlo Park, California, on September 30, 1997.
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxxxx, President
/s/ Tae Xxx Xxxx
-----------------------------------
Tae Xxx Xxxx, Secretary
