OF
INCORPORATION AND BYLAWS OF THE SURVIVING CORPORATION.
2
1.6
Intentionally Deleted
1.7
Effect of Merger on Capital Stock
As of the Effective Time, by virtue of the Merger and without any action on the
part of any of the Constituent Corporations or the holders of any securities of
the Constituent Corporations:
(A)
SURVIVING CORPORATION.
AT THE EFFECTIVE TIME, THE EFFECT OF THE
MERGER SHALL BE AS PROVIDED IN THIS AGREEMENT AND THE APPLICABLE PROVISIONS OF
THE MBCA AND THE DGCL.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND
SUBJECT THERETO, AT THE EFFECTIVE TIME, ALL THE PROPERTY, RIGHTS, PRIVILEGES,
POWERS AND FRANCHISES OF MERGER SUB AND THE COMPANY SHALL VEST IN THE SURVIVING
CORPORATION, AND ALL DEBTS, LIABILITIES AND DUTIES OF MERGER SUB AND THE COMPANY
SHALL BECOME THE DEBTS, LIABILITIES AND DUTIES OF THE SURVIVING CORPORATION.
(B)
COMPANY SHARES.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS SET
FORTH IN THIS AGREEMENT, AT THE EFFECTIVE TIME, BY VIRTUE OF THE MERGER AND
WITHOUT ANY ACTION ON THE PART OF MERGER SUB, THE COMPANY OR THE COMPANY
SHAREHOLDERS, THE COMPANY SHARES (EXCLUDING ANY TREASURY SHARES) SHALL BE
CONVERTED INTO THE RIGHT TO RECEIVE AND BE EXCHANGEABLE FOR THE AMOUNT OF CASH
SET FORTH NEXT TO SUCH COMPANY SHAREHOLDER'S NAME ON EXHIBIT A (AN AGGREGATE
PURCHASE PRICE OF $7,225,000 IN CASH) (THE "MERGER CONSIDERATION").
(C)
CANCELLATION OF CERTIFICATES FOR COMPANY SHARES.
AT THE EFFECTIVE
TIME, ALL COMPANY SHARES SHALL CEASE TO BE OUTSTANDING, SHALL BE CANCELED AND
RETIRED AND SHALL CEASE TO EXIST, AND EACH CERTIFICATE (A "CERTIFICATE")
FORMERLY REPRESENTING A COMPANY SHARE (OTHER THAN A TREASURY SHARE) SHALL
THEREAFTER CEASE TO HAVE ANY RIGHTS WITH RESPECT TO THE COMPANY SHARES, EXCEPT
AS PROVIDED HEREIN OR BY LAW.
(D)
TREASURY STOCK.
EACH COMPANY SHARE OWNED BY THE COMPANY
("TREASURY SHARES") SHALL AUTOMATICALLY BE CANCELED AND RETIRED AND SHALL CEASE
TO EXIST, AND NO CONSIDERATION SHALL BE DELIVERED IN EXCHANGE THEREFOR.
(E)
MERGER SUB STOCK.
EACH SHARE OF COMMON STOCK, PAR VALUE $0.01 PER
SHARE, OF MERGER SUB ISSUED AND OUTSTANDING IMMEDIATELY PRIOR TO THE EFFECTIVE
TIME SHALL BE CONVERTED INTO AND BECOME ONE VALIDLY ISSUED, FULLY PAID AND
NONASSESSABLE SHARE OF CAPITAL STOCK, PAR VALUE $0.01 PER SHARE, OF THE
SURVIVING CORPORATION, SUCH THAT PARENT SHALL BE THE HOLDER OF ALL OF THE ISSUED
AND OUTSTANDING SHARES OF CAPITAL STOCK OF THE SURVIVING CORPORATION FOLLOWING
THE MERGER.
1.8
Payment of Merger Consideration
The Merger Consideration shall be paid as follows:
3
(A)
AT THE CLOSING, THE AGGREGATE SUM OF $6,975,000 SHALL BE PAID TO
THE COMPANY SHAREHOLDERS IN CASH BY PAYING TO EACH COMPANY SHAREHOLDER BY
CERTIFIED OR BANK CHECK OR BY WIRE TRANSFER OF FUNDS TO AN ACCOUNT SPECIFIED BY
SUCH COMPANY SHAREHOLDER IN WRITING AT LEAST THREE DAYS PRIOR TO THE CLOSING
DATE THE CASH AMOUNT SET FORTH NEXT TO HIS NAME UNDER THE HEADING "CASH PAYMENT
AT CLOSING" ON EXHIBIT A HERETO, AS AMENDED;
(B)
WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE END OF THE