AGREEMENT OF MERGER
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This Agreement of Merger (the "Agreement") is made and entered into as of
July 18, 1996, by and between Resource Biometrics, Inc., a California
corporation ("RBI") and IBAH Acquisition Company, a California corporation
("IBAH"), and IBAH, Inc., a Delaware corporation ("IBAH, Inc.").
R E C I T A L S
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A. Prior to the execution of this Agreement, IBAH, IBAH, Inc., and RBI
have entered into an Agreement and Plan of Merger dated July 18, 1996, (the
"Plan") providing for, among other things, the execution and delivery of this
Agreement, the merger of RBI with and into IBAH, and for the issuance of shares
of the Common stock of IBAH, Inc. ("IBAH, Inc. Common Stock") upon the terms set
forth in the Plan and this Agreement.
B. The respective Boards of Directors of IBAH, RBI, and IBAH, Inc. and
the shareholders of RBI have determined that it is in the best interests of
their respective corporations that RBI be merged with and into IBAH in a
statutory merger pursuant to the Plan and this Agreement and in accordance with
California law and that upon the effective date of such merger (the "Merger")
the outstanding shares of RBI Common Stock shall be converted into shares of
IBAH, Inc. Common Stock pursuant to the terms and conditions of this Agreement
and the Plan.
C. The parties intend the Plan and Merger to qualify as a tax free plan
of reorganization pursuant to the provisions of Section 368(a)(2)(D) of the
Internal Revenue Code of 1954, as amended.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
agreements, representations, and warranties contained herein, the parties agree
as follows:
1. Effective Date of Merger. The Merger shall become effective when this
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Agreement and the Officer's Certificates of the Corporations are filed with the
Secretary of State of the State of California as required by Section 1103 of the
California Corporations Code. The date on which the merger shall become
effective is referred to herein as "the Effective Date."
2. Effect of Merger. On the Effective Date, RBI shall be merged with and
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into IBAH pursuant to the terms and conditions of this Agreement and in
accordance
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with the applicable provisions of California law and IBAH shall continue in
existence as the surviving corporation (the "Surviving Corporation"). The
corporate identity, existence, purposes, powers, rights, and immunities of IBAH
as the Surviving Corporation shall continue unaffected and unimpaired by the
Merger. The separate existence and corporate organization of RBI shall cease on
the Effective Date and IBAH shall succeed to and possess all the properties,
rights, privileges, powers, franchises, immunities and purposes, and be subject
to all the debts, liabilities, obligations, restrictions, disabilities,
penalties and duties of Subsidiary, by operation of law without further act or
deed.
3. Further Acts. Notwithstanding the above, after the Effective Date the
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proper officers and directors of RBI may perform any acts necessary of desirable
to vest or confirm IBAH's possession of and title to any property or rights of
RBI, or otherwise carry out this Agreement's purposes. This shall include
execution and delivery of documents, assurances, assignments, or other
instruments.
4. Articles of Incorporation. From and after the Effective Date, the
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articles of incorporation of IBAH in effect immediately prior to the Effective
Date shall be the articles of incorporation of the Surviving Corporation. The
shareholder(s) and director(s) of IBAH shall amend the articles of incorporation
to change the name of the Surviving Corporation to Resource Biometrics, Inc.
5. Bylaws. From and after the Effective Date, the Bylaws of IBAH in
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effect immediately prior to the Effective Date shall be the Bylaws of the
Surviving Corporation.
6. Conversion of Shares.
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a. Conversion of RBI Common and Preferred Stock. Prior to the
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issuance of any shares of IBAH Common Stock to be issued in connection with the
Merger Consideration to holders of RBI Common Stock, each share of RBI Series A
Preferred Stock that is issued and outstanding on the Effective Date shall, by
virtue of the Merger and without further action, cease to exist and shall be
converted into 0.151689 shares of IBAH, Inc. Common Stock. Following the
issuance of IBAH Common Stock to the holders of RBI Series A Preferred Stock,
the remaining shares of IBAH Common Stock to be issued in connection with the
Merger Consideration shall be issued pro rata among the holders of shares of RBI
Common Stock and RBI Series A Preferred Stock on ratio of one (1) IBAH Common
Stock share for each 13.12 shares of RBI Common Stock or RBI Series A Preferred
Stock; provided, however, that the holders of RBI Series A Preferred Stock shall
receive a maximum value of $3.00 of IBAH Common Stock in the aggregate.
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b. Surrender and Exchange of Outstanding Certificates of RBI Common
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Stock; Status of Outstanding Certificates. The conversion of shares of RBI
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Common Stock as provided for by this Agreement shall occur automatically upon
the Effective Date without further action by the holders thereof. Each holder of
a certificate or certificates theretofore representing a share or shares of RBI
Common Stock shall surrender his, her, or its share certificate or certificates
to the transfer agent appointed by the Surviving Corporation and upon such
surrender shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of IBAH, Inc. Common Stock into
which his, her, or its shares of RBI Common Stock shall have been converted. All
shares of IBAH, Inc. Common Stock to be received by RBI shareholders pursuant to
the Merger shall be issued directly from IBAH, Inc. to such RBI shareholders.
c. Fractional Shares. No certificates or scrip representing
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fractional shares of IBAH, Inc. Common Stock shall be issued upon the surrender
for exchange of certificates representing RBI Common Stock. In the event of
fractions, the number of shares of IBAH, Inc. Common Stock to be distributed to
any shareholder of RBI pursuant to the Merger shall be rounded to the nearest
whole number of shares, with one-half being rounded up.
7. Abandonment of Merger. Any time prior to the Effective Date, this
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merger may be abandoned without further obligation or liability by action of the
Board of Directors of either of the Corporations, notwithstanding approval of
the merger by their shareholders.
8. Successors and Assigns. All the terms and provisions of this
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Agreement shall be binding upon and insure to the benefit of and be enforceable
by the respective successors in interest of the parties hereto.
9. Governing Law. This Agreement shall be construed and interpreted
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according to the laws of the State of California.
10. Headings. The headings in the sections of this Agreement are inserted
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for convenience only and shall not constitute a part hereof.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed as of the date and year first above written.
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Resource Biometrics, Inc., a California IBAH Acquisition Company, a
corporation California corporation
by: ___________________________________ by: /s/ Geraldine A. Henwood,
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John T. Brega, Chief Executive Geraldine A. Henwood, Chief
Officer Executive Officer
by: ___________________________________ by: /s/ Jane Holmes Hollingsworth
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John T. Brega, Secretary Jane Holmes Hollingsworth,
Secretary
IBAH, Inc., a Delaware corporation
by: /s/ Geraldine A. Henwood,
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Geraldine A. Henwood, Chief
Executive Officer
by: /s/ Jane Holmes Hollingsworth
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Jane Holmes Hollingsworth,
Secretary
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