Exhibit 3.95
AGREEMENT OF MERGER
This Agreement of Merger is made and entered into as of August 17, 1995
("Merger Agreement"), between Troll Technology Corporation, a California
corporation ("Company"), and TTC Acquisition Company, a California corporation
("Sub" or the "Surviving Corporation;" Company and Sub being hereinafter
collectively referred to as the "Constituent Corporations").
INTENDING TO BE LEGALLY BOUND, and in consideration of the premises and
mutual covenants and agreements contained herein, the Constituent Corporations
hereby agree as follows:
ARTICLE I
THE MERGER
1.1 Merger of Company With and Into Sub.
(a) Agreement to Acquire Company. Upon the terms and subject to the
conditions of this Merger Agreement and an Agreement and Plan of Merger, dated
as of June 30, 1995 (the "Agreement"), among Jefferson Partners Capital
Corporation, a Canadian corporation and the owner of all the outstanding shares
of common stock of Sub ("Parent"), Company, the shareholders of Company and Sub,
Company shall be acquired by Parent through a merger (the "Merger") of Company
with and into Sub.
(b) Effective Date. The Merger shall become effective upon the
filing of this Merger Agreement and officers' certificates of each Constituent
Corporation with the Secretary of State of the State of California pursuant to
Section 1103 of the California General Corporation Law (the "GCL"). The date and
time of such filing is hereinafter referred to as the "Effective Date."
(c) Surviving Corporation. At the Effective Date, Company shall be
merged with and into Sub and the separate corporate existence of Company shall
thereupon cease. Sub shall be the surviving corporation in the Merger.
1.2 Effect of the Merger; Additional Actions.
(a) Effects. The Merger shall have the effects set forth in Section
1107 of the GCL. Without limiting such effects, the Surviving Corporation shall
have the name "Troll Technology Corporation" and shall have all the rights,
privileges, immunities and franchises, of a public as well as of a private
nature, of each of the Constituent Corporations; and all property, real,
personal and mixed, tangible and intangible, and all debts due on whatever
account, and all other choses in action, and all and every other interest, of or
belonging to or due to each of the Constituent Corporations, shall be taken and
deemed to be vested in the Surviving Corporation without further act or deed.
Subject to the provisions of this Agreement, the Surviving Corporation shall
thereafter be responsible and liable for all liabilities and obligations of each
of the Constituent Corporations; and any claim existing or action or proceeding
pending by or against either of the Constituent Corporations may be prosecuted
as if such Merger had not taken
place or the Surviving Corporation may be substituted in its place. Neither the
rights of creditors nor any liens upon the assets and properties of either of
the Constituent Corporations shall be impaired by the Merger.
(b) Additional Actions. If, at any time after the Effective Date,
the Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable (i) to vest, perfect or confirm of record or otherwise in the
Surviving Corporations its rights, title or interest in, to or under any of the
rights, properties or assets of either Constituent Corporation acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with, the
Merger or (ii) to otherwise carry out the purposes of this Merger Agreement,
each Constituent Corporation and its officers and directors shall be deemed to
have granted to the Surviving Corporation an irrevocable power of attorney to
execute and deliver all such deeds, bills of sale, assignments and assurances
and to take and do all such other actions and things as may be necessary or
desirable to vest, perfect or confirm any and all right, title and interest in,
to and under such rights, properties or assets in the Surviving Corporation or
otherwise to carry out the purposes of this Merger Agreement; and the officers
and directors of the Surviving Corporation are fully authorized in the name of
each Constituent Corporation or otherwise to take any and all such actions.
ARTICLE II
ARTICLES OF INCORPORATION, BYLAWS AND
DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
2.1 Amendment of Company's Articles of Incorporation.
(a) Authorized Stock at Merger. At the Effective Date, Article I of
the Articles of Incorporation of Sub shall be amended in its entirety to read as
follows:
"The name of this corporation is Troll Technology Corporation"
(b) Articles of Incorporation of Surviving Corporation. The Articles
of Incorporation of Sub in effect immediately prior to the Effective Date, as
amended as provided in Section 2.1(a), shall be the Articles of Incorporation of
the Surviving Corporation unless and until amended or repealed as provided by
applicable law and such Articles of Incorporation.
2.2 Bylaws of the Surviving Corporation. The Bylaws of Sub in effect
immediately prior to the Effective Date shall be the Bylaws of the Surviving
Corporation unless and until amended or repealed as provided by applicable law,
the Articles of Incorporation of the Surviving Corporation and such Bylaws.
2.3 Officers and Directors of Surviving Corporation. The directors of
Sub immediately prior to the Effective Date shall be the directors of the
Surviving Corporation, and the officers of Company immediately prior to the
Effective Date shall be the officers of the Surviving Corporation, in each case
until their successors shall have been elected, qualified or until otherwise
provided by law.
ARTICLE III
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
3.1 Effect on Capital Stock. As of the Effective Date, by virtue of the
Merger and without any action on the part of the holder of any shares of capital
stock of Sub or Company:
(a) Capital Stock of Sub. All issued and outstanding shares of
capital stock of Sub shall continue to be issued and outstanding and shall be
converted into 1,000 shares of Common Stock of the Surviving Corporation. Each
stock certificate of Sub evidencing ownership of any such shares shall continue
to evidence ownership of such shares of capital stock of the Surviving
Corporation.
(b) Cancellation of Company Stock. All shares of common stock,
without par value, of Company ("Corporation Common Stock") that are owned
directly or indirectly by Company or by any Subsidiary of Company and any shares
of Corporation Common Stock that are owned by Parent, Sub or any other
Subsidiary of Parent shall be cancelled and retired, and no stock of Parent or
other consideration shall be delivered in exchange therefor and all rights in
respect thereof shall cease to exist without any conversion thereof or payment
therefor. In this Merger Agreement, a "Subsidiary" of a Person means, at any
time, any corporation or other Person, if at such time the first mentioned
Person owns, directly or indirectly, securities or other ownership interests in
such corporation or other Person, having ordinary voting power to elect a
majority of the board of directors or persons performing similar functions for
such corporation or other Person. In this Merger Agreement, a "Person" means an
individual, partnership, corporation, trust, unincorporated association, limited
liability company, joint venture or other entity or governmental body,
authority, agency or entity.
(c) Conversion of Corporation Common Stock. At the Effective Date,
all the issued and outstanding shares of Corporation Common Stock (other than
shares to be cancelled pursuant to Section 3.1(b) and shares, if any, held by
persons exercising dissenters' rights in accordance with Chapter 13 of the GCL
("Dissenting Shares")), automatically and without any action on the part of the
holders thereof, shall cease to be outstanding and shall be converted into the
right to receive in the aggregate after the Effective Date on a pro rata basis,
(i) an amount in cash equal to $854,370.56 (or approximately $3,666 per share of
Corporation Common Stock); (ii) 475,000 Common Shares in the capital of Parent
("Common Shares") (approximately 2,038 Common Shares per share of Corporation
Common Stock); and (III) Warrants to purchase 500,000 Common Shares ("Warrants")
(Warrants to purchase approximately 2,145 Common Shares per share of Corporation
Common Stock).
All such shares of Corporation Common Stock, when so converted, shall no longer
be outstanding and shall automatically be cancelled and retired and shall cease
to exist, and each holder of a certificate representing any such shares shall
cease to have any rights with respect thereto, except the right to receive the
consideration provided in this Section 3.1(c) to be issued or paid in
consideration therefor upon the surrender of such certificate in accordance with
the Agreement, without interest.
(d) Dissenters' Rights. If holders of Corporation Common Stock are
entitled to dissenters' rights in connection with the Merger under Chapter 13 of
the GCL, any Dissenting Shares shall not be converted into the right to receive
cash. Common Shares and Warrants as provided in Section 3.1(c), but shall be
converted into the right to receive such consideration as may be determined to
be due with respect to such Dissenting Share pursuant to the laws of the State
of California.
(e) Fractional Shares. No certificate or scrip representing
fractional Common Shares or Warrants shall be issued upon the surrender for
exchange of certificates representing Corporation Common Stock, and such
fractional share interests will not entitle the owner thereof to vote or to
enjoy any other rights of a shareholder of Parent.
3.2 No Further Ownership Rights in Corporation Common Stock. All cash
paid and Common Shares and Warrants issued upon the surrender for exchange of
shares of Corporation Common Stock in accordance with the terms hereof
(including any cash paid pursuant to Sections 3.1(e)) shall be deemed to have
been issued in full satisfaction of all rights pertaining to such shares of
Corporation Common Stock, subject, however, to the Surviving Corporation's
obligation to pay any dividends or make any other distributions with a record
date prior to the Effective Date which may have been declared or made by Company
on such shares of Corporation Common Stock in accordance with the terms of this
Merger Agreement and the Agreement or prior to the date hereof and which remain
unpaid at the Effective Date, and there shall be no further registration of
transfers on the stock transfer books of the Surviving Corporation or its
transfer agent of the shares of Corporation Common Stock which were outstanding
immediately prior to the Effective Date. If, after the Effective Date,
Certificates are presented to the Surviving Corporation for any reason, they
shall be cancelled and exchanged as provided in this Article III.
ARTICLE IV
TERMINATION
4.1 Termination by Mutual Agreement. Notwithstanding the approval of
this Merger Agreement by the shareholders of Company and Sub, this Merger
Agreement may be terminated at any time prior to the Effective Date by mutual
agreement of the Boards of Directors of Company and Sub.
4.2 Termination of Agreement and Plan of Merger. Notwithstanding the
approval of this Merger Agreement by the shareholders of Company and Sub, this
Merger Agreement shall terminate forthwith in the event that the Agreement shall
be terminated as therein provided.
4.3 Effects of Termination. In the event of the termination of this
Merger Agreement, this Merger Agreement shall forthwith become void and there
shall be no liability on the part of either Company or Sub or their respective
officers or directors, except as otherwise provided in the Agreement.
ARTICLE V
GENERAL PROVISIONS
5.1 Amendment. This Merger Agreement may be amended by the parties
hereto any time before or after approval hereof by the shareholders of Company
and Sub, but, after such approval, no amendment shall be made which by law
requires 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.
5.2 Counterparts. This Merger Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one agreement.
5.3 Interpretation. The headings contained in this Merger Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Merger Agreement.
5.4 Miscellaneous. This Merger Agreement, (a) together with the
Agreement, constitutes the entire agreement of the parties and supersedes all
other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof; (b) is not
intended to confer upon any other person any rights or remedies hereunder; and
(c) shall be governed in all respects, including as to validity, interpretation
and effect, by the laws of the State of California (without giving effect to the
provisions thereof relating to conflicts of law).
5.5 Parties in Interest. This Merger Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Merger
Agreement, expressed or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this Merger
Agreement.
IN WITNESS WHEREOF, the parties have each caused this Merger Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
TTC ACQUISITION COMPANY
By: /s/ Gary B. Rubinoff
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Name: Gary Rubinoff
Title: President
/s/ Gary B. Rubinoff
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Secretary
TROLL TECHNOLOGY CORPORATION
By: /s/ Tom Storli
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Name: Tom J. Storli
Title: President
/s/ Jeffery Hopkins
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Secretary
CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
The undersigned hereby certify as follows:
1. They are the President and Secretary, respectively, of Troll Technology
Corporation, a California corporation (the "Corporation").
2. The Agreement of Merger in the form attached was duly approved by the
board of directors and shareholders of Corporation.
3. The shareholder approval was effected by an action by unanimous written
consent without a meeting by the holders of outstanding shares of Corporation
having an aggregate number of votes which equaled or exceeded the number of
votes required for approval of the Agreement of Merger.
4. Corporation has only one class of shares outstanding and entitled to
vote, and the number of shares outstanding is 233. The percentage vote of such
class required to approve such Agreement of Merger is 50 plus one vote.
/s/ Tom Storli
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Tom J. Storli, President
/s/ Jeffery Hopkins
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Jeffery G. Hopkins, Secretary
The undersigned declare under penalty of perjury under the
laws of the State of California that the matters set forth in this
certificate are true and correct of our own knowledge.
Executed at Valencia, California, on August 17, 1995
/s/ Tom Storli
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Tom J. Storli, President
/s/ Jeffery Hopkins
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Jeffery G. Hopkins, Secretary
CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
The undersigned hereby certifies as follows:
5. He is the President and Secretary of TTC Acquisition Company, a
California corporation (the "Corporation").
6. The Agreement of Merger in the form attached was duly approved by the
board of directors and shareholders of the Corporation.
7. The shareholder approval was by the holder of one hundred percent (100%)
of the outstanding shares of the Corporation.
8. The Corporation has only one class of shares and the number of shares
outstanding if 1,000.
9. No vote of the shareholders of Jefferson Partners Capital Corporation,
the parent corporation of the Corporation, was required to approve the Agreement
of Merger.
/s/ Gary B. Rubinoff
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Gary Rubinoff, President
/s/ Gary B. Rubinoff
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Gary Rubinoff, Secretary
The undersigned declare under penalty of perjury under the
laws of the State of California that the matters set forth in this certificate
are true and correct of our own knowledge.
Executed at Toronto, Ontario, Canada, on August 9, 1995
/s/ Gary B. Rubinoff
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Gary Rubinoff, President
/s/ Gary B. Rubinoff
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Gary Rubinoff, Secretary
ARTICLES OF INCORPORATION
OF
TTC ACQUISITION COMPANY
ARTICLE VI
The name of this corporation is: TTC ACQUISITION COMPANY.
ARTICLE VII
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE VIII
The name and complete business address in the State of California of this
corporation's initial agent for service of process is:
CT Corporation System
ARTICLE IX
This corporation is authorized to issue only one class of shares of stock
which shall be designated common stock; and the total number of shares which
this corporation is authorized to issue is 1000 Shares.
ARTICLE X
(a) The liability of directors of this corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
(b) This corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors, or otherwise, to the fullest extent permissible under California law.
(c) Any amendment, repeal or modification of any provision of this Article
V shall not adversely affect any right or protection of an agent of this
corporation existing at the time of such amendment, repeal or modification.
Dated: June 28, 1995 /s/ Deborah A. Moore
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Deborah Abernathy Moore, Incorporator