inTEST CORPORATION
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AGREEMENT OF EXCHANGE
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AGREEMENT made as of April 4, 1997 between Xxxx X. Xxxx ("Stockholder")
and inTEST Corporation, a Delaware, USA corporation ("Delaware inTEST").
RECITALS
Stockholder owns 16,500 shares of S$1.00 (the "Subsidiary Stock") in
the issued share capital of inTEST Pte. Ltd. (the "Subsidiary").
Approximately 79% of the shares comprising the total issued share
capital of the Subsidiary is owned by inTEST Corp., a New Jersey, USA
corporation ("New Jersey inTEST").
New Jersey inTEST proposes to change its domicile from the State of New
Jersey, USA to the State of Delaware, USA pursuant to a merger of New Jersey
inTEST with and into Delaware inTEST.
Sometime after the merger, Delaware inTEST proposes to offer to the
public (the "Public Offering") shares of the common stock, par value $.01 per
share, of Delaware inTEST (the "Common Stock") pursuant to an S-1 Registration
Statement and related Prospectus (the "Registration Statement").
Prior to the Public Offering, Delaware inTEST proposes to declare and
pay a stock dividend on all of the issued and outstanding shares of Common
Stock.
Delaware inTEST intends to structure the Public Offering so that
each of its stockholders will be able to participate in the Public Offering and
sell a portion of his shares of the Common Stock on a pro rata basis. However,
no assurance can be given at this time by Delaware inTEST that the stockholders
will be able to participate in the Public Offering.
To accomplish the reorganization, recapitalization and Public Offering
proposed by Delaware inTEST, it is necessary that Delaware inTEST acquire the
stock of the Subsidiary owned by Stockholder, and Stockholder desires to
exchange his shares of the Subsidiary Stock under the terms and provisions of
this Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises herein contained, and intending to be legally bound hereby, agree as
follows:
1. Exchange of Stock
(a) Number of Shares. Immediately prior to the consummation of the
Public Offering, Stockholder shall transfer and deliver to Delaware inTEST all
of the shares of the Subsidiary owned by Stockholder, and in exchange therefor,
Delaware inTEST shall issue and deliver to Stockholder (or his agent) 7,221
shares of the Common Stock. For the purposes of this Agreement, the phrase
"consummation of the Public Offering" shall mean the completion of the sale of
the Common Stock to the underwriter of the Public Offering in accordance with
the Registration Statement.
(b) Adjustment to Number of Shares. If Delaware inTEST shall, after the
date of this Agreement, (i) pay a dividend or make a distribution on its Common
Stock in shares of Common Stock, (ii) subdivide the outstanding shares of Common
Stock into a larger number of shares, (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, or (iv) issue by reclassification
of its Common Stock any shares of capital stock of Delaware inTEST, the number
of shares of Common Stock to be delivered to Stockholder pursuant to this
Agreement shall be adjusted so that Stockholder shall be entitled to receive the
number of shares of Common Stock which Stockholder would have received
immediately after such action mentioned above had the exchange contemplated by
this Agreement had happened immediately prior to such action.
2. Closing
The closing under this Agreement (the "Closing") and the exchange of
the Subsidiary Stock for the Common Stock shall take place at the time, date and
place of the consummation of the Public Offering or at such other time, date or
place as the parties shall mutually agree.
3. Representations and Warranties of Delaware inTEST
Delaware inTEST represents and warrants to Stockholder as follows, and
all of such representations and warranties shall be true and correct at and as
of the time of the Closing as though then made and shall survive the Closing:
(a) Organization. Delaware inTEST is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with corporate power to own its properties and to carry on its business as
presently conducted.
(b) Authorization. The execution and delivery of this Agreement on
behalf of Delaware inTEST and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action,
and this Agreement constitutes the legal, valid and binding obligation of
Delaware inTEST, enforceable in accordance with its terms.
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(c) Shares of the Common Stock. The shares of Common Stock deliverable
to Stockholder pursuant to this Agreement, when delivered, will be duly
authorized, validly issued, fully paid and non-assessable.
(d) Conflicts. Neither the execution and delivery of this Agreement nor
compliance with the terms and conditions of this Agreement by Delaware inTEST
will breach or conflict with any of the terms, conditions or provisions of the
Certificate of Incorporation or By-Laws of Delaware inTEST or of any agreement
or instrument to which Delaware inTEST is a party or by which Delaware inTEST is
or may be bound, or constitute default thereunder or result in a termination of
any such agreement or instrument.
4. Representations and Warranties of Stockholder
Stockholder represents and warrants to Delaware inTEST as follows, and
all of such representations and warranties shall be true and correct at and as
of the time of the Closing as though then made and shall survive the Closing:
(a) Ownership and Authority to Transfer Subsidiary Stock. Stockholder
holds of record and is the lawful beneficial owner of the Subsidiary Stock free
and clear of any pledge, lien, encumbrance, equity, voting trust, security
interest or claim of any kind or character, and of any rights in third persons
to purchase any of the Subsidiary Stock. Stockholder has full legal right, power
and authority to sell, transfer and deliver the shares of the Subsidiary Stock
to Delaware inTEST and to enter into this Agreement and perform or be subject to
each of the agreements and obligations undertaken by Stockholder in this
Agreement, or documents contemplated hereby, without need for any consent,
approval, authorization, license or order of any court or governmental agency or
body. The delivery of certificates for the shares of the Subsidiary Stock duly
endorsed will transfer valid title to Delaware inTEST, free and clear of all
pledges, liens, encumbrances, equities, voting trusts, security interests and
claims of any kind or character.
(b) No Conflict. Neither the execution and delivery of this Agreement
nor compliance with the terms and conditions of this Agreement by Stockholder
will breach, terminate, violate or conflict with and will not with the giving of
notice or the passage of time constitute grounds for a default, violation or
termination of any of the terms, conditions or provisions of any agreement,
license, franchise or instrument of any kind or any provision of law or any
judicial or administrative order, award, judgment or decree to which Stockholder
is a party or by which Stockholder is or may be bound. This Agreement
constitutes the legal, valid and binding agreement of Stockholder, enforceable
in accordance with its terms.
(c) Registration Statement. Stockholder has carefully read the most
recent draft (April 1, 1997) of the Registration Statement available prior to
the date of this Agreement and acknowledges that he has been given the
opportunity by Delaware inTEST to ask questions and receive additional documents
and information with respect to the exchange
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contemplated by this Agreement, the Public Offering and Delaware inTEST.
Stockholder is acquiring the shares of the Common Stock without being furnished
any sales literature or prospectus other than the said draft of the Registration
Statement.
(d) Investment Intent. Other than any shares of the Common Stock to be
sold by or on behalf of Stockholder as part of the Public Offering, Stockholder
is acquiring the shares of the Common Stock pursuant hereto solely for his own
account for investment purposes and not with a view to resale or distribution,
and Stockholder has no present intention of selling or distributing said shares.
Stockholder is aware that there may be legal and practical limits on
Stockholder's ability to sell or dispose of the Common Stock.
(e) Risk. Stockholder recognizes that an investment in the Common Stock
involves certain risks, and Stockholder has taken full cognizance of and
understands all of the risk factors related to the acquisition of the Common
Stock, including those set forth under the caption "Risk Factors" in the
Registration Statement.
(f) Registration Exemption. Stockholder understands that the Common
Stock is being issued to Stockholder in reliance on specific exemptions from the
registration requirements of federal and state laws and that Delaware inTEST is
relying on the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings set forth in this Agreement.
5. Securities Laws
(a) No Registration. Stockholder acknowledges that the exchange of the
Subsidiary Stock for shares of the Common Stock has not been registered under
the Securities Act of 1933, as amended (the "Act"), or any applicable state
securities law by reason of exemptions from the registration requirements of the
Act and such laws, and may not be sold, pledged, assigned or otherwise disposed
of in the absence of an effective registration statement for the Common Stock
under the Act or unless an exemption from such registration is available.
Delaware inTEST is under no obligation to, and has no intention to, register
(except in connection with the Public Offering) the Common Stock or comply with
any exemption from registration so as to permit any resale and has not
represented that at some future date an attempt will be made to register the
Common Stock or to comply with an exemption from registration so as to permit
any resale.
(b) Resale of Common Stock. Except for the Public Offering, Stockholder
will not attempt to sell, transfer, assign, pledge or otherwise dispose of all
or any portion of the Common Stock in the absence of either an effective
registration statement or an opinion of reputable securities counsel
satisfactory in form and substance to Delaware inTEST and its counsel that such
proposed sale, transfer, assignment, pledge or other disposition would not be in
violation of the Act.
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(c) Restrictive Legend. Stockholder agrees that Delaware inTEST may
place upon each certificate for the shares of Common Stock delivered to
Stockholder a legend stating that said shares have not been registered under the
provisions of the Act and were issued in a transaction not involving a public
offering under an investment representation.
6. Conditions Precedent to Stockholder's Obligations
All of the obligations of Stockholder to consummate the transaction
contemplated by this Agreement are subject to the fulfillment, at or prior to
the Closing, of each of the following conditions:
(a) Representations and Warranties. All representations and warranties
of Delaware inTEST contained in this Agreement shall be true and correct at and
as of the time of the Closing as though made at and as of such time (except that
such representations and warranties may reflect the consummation of any
transactions contemplated by this Agreement); and Delaware inTEST shall have
performed and complied with all of its obligations under this Agreement which
are to be performed and complied with by it prior to or at the time of the
Closing.
(b) Stock Certificates of inTEST. Delaware inTEST shall have delivered
to Stockholder (or his agent) a certificate or certificates representing the
shares of Common Stock to which Stockholder is entitled hereunder registered in
the name of Stockholder.
7. Conditions Precedent to inTEST's Obligations
All of the obligations of Delaware inTEST to consummate the transaction
contemplated by this Agreement are subject to the fulfillment, at or prior to
the Closing, of each of the following conditions:
(a) Representations True at Closing. All representations and warranties
of Stockholder contained herein shall be true and correct at and as of the time
of the Closing as though made at and as of such time (except that such
representations and warranties may reflect the consummation of any transactions
contemplated by this Agreement); and Stockholder shall have performed and
complied with all of his obligations under this Agreement which are to be
performed and complied with by him prior to or at the time of the Closing.
(b) Delivery of Shares. Stockholder shall have delivered to Delaware
inTEST certificates representing all of the shares of the Subsidiary Stock
accompanied by a separate instrument of transfer duly executed by Stockholder in
favor of Delaware inTEST, free and clear of all liens, claims, liabilities,
security interests, charges, restrictions or encumbrances of any nature
whatsoever.
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8. Indemnity by Delaware inTEST
Delaware inTEST hereby indemnifies Stockholder against and holds
Stockholder harmless of and from any and all demands, claims, losses, expenses,
damages, deficiencies and liabilities (including reasonable attorneys' fees and
other costs and expenses of any suit, action or proceeding) resulting at any
time after the date of this Agreement by reason of any misrepresentation, breach
of warranty or non-fulfillment of any covenant or agreement on the part of
Delaware inTEST contained in this Agreement.
9. Indemnity by Stockholder
Stockholder hereby indemnifies Delaware inTEST against and holds
Delaware inTEST harmless of and from any and all demands, claims, losses,
expenses, damages, deficiencies and liabilities (including reasonable attorneys'
fees and other costs and expenses of any suit, action or proceeding) resulting
at any time after the date of this Agreement by reason of any misrepresentation,
breach of warranty or non-fulfillment of any covenant or agreement on the part
of Stockholder contained in this Agreement.
10. Termination
The exchange of Subsidiary Stock and Common Stock contemplated by this
Agreement and the obligations of the parties hereto under this Agreement are
subject to the consummation of the Public Offering. If the Public Offering is
not consummated, for any reason, on or before August 31, 1997, either party may
terminate this Agreement, without liability, by giving the other party written
notice of such termination.
11. General
(a) Further Assurances. The parties hereto shall execute and deliver
any and all papers and documents and take any and all actions which may be
necessary or appropriate to carry out the terms of this Agreement.
(b) Waiver of Conditions. Any party hereto may waive any condition
provided in this Agreement for his or its benefit.
(c) Governing Laws. This Agreement shall be governed, construed and
enforced in accordance with the substantive laws of the State of Delaware.
(d) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and there
are no agreements, representations or warranties which are not set forth herein.
All prior negotiations, agreements and understandings are superseded hereby.
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(e) Amendment. This Agreement may not be amended or revised except by a
writing signed by the parties hereto.
(f) Headings. The section and paragraphs headings of this Agreement are
for convenience only, form no part of this Agreement, and shall not affect its
interpretation.
(g) Binding Effect. The terms and conditions of this Agreement shall be
binding upon the successors, assigns, heirs, distributees, administrators,
executors and legal representatives of the parties hereto.
(h) Equitable Relief. The parties hereto acknowledge that the exchange
of shares contemplated by this Agreement is unique, and that any violation of
this Agreement cannot be compensated for in damages alone. Therefore, in
addition to all of the other remedies which may be available under applicable
law, either party hereto shall have the right to equitable relief including,
without limitation, the right to enforce specifically the terms of this
Agreement by obtaining injunctive relief against any violation or
non-performance hereof.
(i) Litigation. Any action or claim at law or equity arising under or
related to this Agreement shall be brought only in the Chancery Court of the
State of Delaware or in the United States District Court for the Eastern
District of Pennsylvania, and the parties hereto hereby consent to personal
jurisdiction and venue in said courts.
(j) Construction of Agreement. In the case any provision of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable,
such holding shall not affect the validity, legality or enforceability of the
remaining provisions of this Agreement which shall be construed as if such
invalid, illegal or unenforceable provision had never been included herein.
(k) Stamp Duty. The Stamp Duty on the instrument of transfer relating
to the Subsidiary Stock shall be paid by Stockholder.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day and year first above written.
inTEST CORPORATION
By: /s/ Xxxx X. Xxxx
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Chairman
Witness: Stockholder
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxx
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