AGREEMENT OF MERGER
This Agreement of Merger (the "Agreement") is dated as of June 27, 2006,
by and among Cryomastor Acquisition Corp., a California corporation and
wholly-owned subsidiary of Parent ("Merger Subsidiary") and CRYOMASTOR INC., a
California corporation (the "Surviving Corporation"). Merger Subsidiary and
Surviving Corporation are collectively referred to herein as the "Constituent
Corporations").
A. Merger Subsidiary and Surviving Corporation, along with Reflect
Scientific, Inc. a Utah corporation ("Parent"), have entered into that certain
Agreement and Plan of Merger dated as of April 19, 2006 (the "Plan of
Merger"), providing, among other things, for the execution and filing of this
Agreement of Merger and the merger of the Merger Subsidiary with and into the
Surviving Corporation (the "Merger") upon the terms and subject to the
conditions set forth in the Plan of Merger and this Agreement of Merger; and
B. The respective Boards of Directors of each of the Constituent
Corporations deem it advisable and in the best interests of each of such
corporations, and their respective shareholders, that the Merger Subsidiary be
merged with and into Surviving Corporation; and
C. The shareholders of Merger Subsidiary and Surviving Corporation have
unanimously adopted and approved of the Plan of Merger.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
representations, warranties, covenants, and agreements contained herein, the
parties hereto agree
as follows:
ARTICLE I
THE MERGER
1.1 Surviving Corporation. Surviving Corporation is a California
corporation organized on October 27, 2005, and has ten million (10,000,000)
shares of common stock outstanding.
1.2 Merger Subsidiary. Merger Subsidiary is a California corporation
organized on April 7, 2006, and has one thousand (1,000) shares of common
stock outstanding.
1.3 Filing. This Merger Agreement, together with the officers'
certificates of each of the Constituent Corporations required by the General
Corporation Law of the State of California (the "California Law"), shall be
filed with the Secretary of State of the State of California at the time
specified in the Plan of Merger.
1.4 Effectiveness. The Merger shall become effective at the time
this Merger Agreement is filed with and accepted by the Secretary of State of
the State of California (the "Effective Time").
1.4 Merger. At the Effective Time, Merger Sub shall be merged into
Surviving Corporation and the separate corporate existence of Merger Sub shall
thereupon cease. Surviving Corporation shall be the surviving corporation in
the Merger and the separate corporate existence of Surviving Corporation, with
all of its purposes, objects, rights, privileges, powers, immunities and
franchises, shall continue unaffected and unimpaired by the Merger.
1.5 Further Action. If at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this
Agreement of Merger or to vest the Surviving Corporation with the full right,
title and possession to all assets, property, rights, privileges, immunities,
powers and franchises of either or both of the Constituent Corporations,
the officers and directors of the Surviving Corporation are fully authorized
in the name of either or both of the Constituent Corporations or otherwise to
take all such action.
ARTICLE II
CORPORATE GOVERNANCE MATTERS
2.1 Articles. From and after the Effective Time and until
thereafter amended as provided by law, the Articles of Incorporation of the
Surviving Corporation shall hereby be amended as follows:
Article I of the Articles of Incorporation is hereby amended to read as
follows:
ARTICLE ONE: The name of this corporation shall be Cryometrix, Inc.
ARTICLE III
MERGER CONSIDERATION
3.1 Conversion. At the Effective Time, by virtue of the Merger and
without any action on the part of the Surviving Corporation and/or the Merger
Subsidiary:
(a) Each outstanding share of common stock of the Surviving
Corporation ("Surviving Corporation Common Stock") issued and outstanding
immediately prior to the Effective Time (except for Company Common Stock
referred to in Section 3.1(c) hereof) will be converted into 0.30 shares of
the common stock of Parent such that all outstanding shares of Surviving
Corporation Common Stock issued and outstanding immediately prior to the
Effective Time (except for Company Common Stock referred to in Section 3.1(c)
hereof) will be converted into three million (3,000,000) shares of the common
stock of Parent. No fractional share shall be issued. Additionally, each
outstanding share of Surviving Corporation Common Stock issued and outstanding
immediately prior to the Effective Time (except for Company Common Stock
referred to in Section 3.1(c) hereof) will be exchanged for $0.70 in cash such
that an aggregate amount of $700,000 is payable to the shareholders of
Surviving Corporation immediately prior to the Effective time. Additionally,
the shareholders of Surviving Corporation shall have the right to receive up
to two million (2,000,000) shares of common stock of Parent based upon the
earnings of Surviving Corporation following the Effective Time as further
described in the Plan of Merger.
(b) All stock options, warrants, convertible debt, other
convertible securities or other rights to acquire shares of the Surviving
Corporation outstanding at the Effective Time, whether or not exercisable and
whether or not vested (all of which are listed on Schedule1.4(b) hereto),
shall be cancelled.
(c) Each share of Surviving Corporation Common Stock issued and
outstanding immediately prior to the Effective Time that is then owned
beneficially or of record by Parent, Merger Subsidiary or any direct or
indirect subsidiary of Parent or Merger Subsidiary will be canceled without
payment of any consideration therefor and without any conversion thereof.
Furthermore, at the Effective Time, one (1) share of Surviving Corporation
Common Stock shall be issued to Parent.
(d) Except as expressly set forth herein, each share of any other
equity interest of the Surviving Corporation (other than Surviving Corporation
Common Stock) will be canceled without payment of any consideration therefor
and without any conversion thereof.
(e) Each share of common stock of Merger Subsidiary, par value
$0.001 per share ("Merger Subsidiary Common Stock"), issued and outstanding
immediately prior to the Effective Time, will be canceled as of the Effective
Time.
(f) Each holder of shares of Surviving Corporation Common Stock
shall surrender their share certificate or certificates to the secretary of
Surviving Corporation and shall be entitled to receive in exchange therefor a
certificate or certificates representing the number of shares into which their
shares theretofore represented by a certificate or certificates so surrendered
shall have been converted as aforesaid.
ARTICLE IV
TERMINATION AND AMENDMENT
4.1 Termination. Notwithstanding the approval of this Merger
Agreement by the shareholders of Merger Subsidiary and Surviving Corporation,
this Merger Agreement shall terminate forthwith in the event that the
Reorganization Agreement shall be terminated as therein provided.
4.2 Amendment. This Merger Agreement may be amended by the parties
hereto at any time before or after approval hereof by the shareholders of
either Merger Subsidiary or Surviving Corporation, but, after any such
approval, no amendment shall be made which without the further approval of
such shareholders would (i) have a material adverse effect on the shareholders
of either Merger Subsidiary or Surviving Corporation; (ii) change any of the
principal terms of the Merger Agreement; or (iii) change any term of the
Articles of Incorporation of the Surviving Corporation. This Merger Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto.
ARTICLE V
MISCELLANEOUS
5.1 Headings. The underlined headings contained in this Merger
Agreement are for convenience of reference only, shall not be deemed to be a
part of this Merger Agreement and shall not be referred to in connection with
the construction or interpretation of this Merger Agreement.
5.2 Counterparts. This Merger Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one agreement.
5.3 Governing Law. This Merger Agreement shall be construed in
accordance with, and governed in all respects by, the internal laws of the
State of California (without giving effect to principles of conflicts of
laws).
5.4 Effectiveness. The effect of the Merger is as prescribed by
law.
IN WITNESS WHEREOF, the parties have executed this Agreement of Merger.
SURVIVING CORPORATION:
CRYOMASTOR, INC., a California corporation
By /s/ John F. Dain
JOHN F. DAIN, President
By /s/ Nicholas J. Henneman
NICHOLAS J. HENNEMAN, Secretary
MERGER SUBSIDIARY:
CRYOMASTOR ACQUISITION CORP.,
a California corporation
By /s/ Kim Boyce
Kim Boyce, President
By /s/ Pamela Boyce
Pamela Boyce, Secretary
OFFICERS' CERTIFICATE
JOHN F. DAIN and NICHOLAS J. HENNEMAN hereby certify that:
1. They are the President and Secretary, respectively, of
CRYOMASTOR, INC., a California corporation (the "Corporation").
2. The Agreement of Merger to which this Certificate is attached (the
"Agreement of Merger") has been duly approved by the Board of Directors of the
Corporation.
3. The Corporation one class of stock outstanding, designated "Common
Stock," of which ten million (10,000,000) shares were outstanding and entitled
to vote on the merger.
4. The principal terms of the Merger Agreement were approved by the
unanimous vote of the shares of common stock outstanding which equaled or
exceeded the vote required. The vote required was a majority of the
outstanding shares of the Common Stock entitled to vote.
Each of the undersigned declares under penalty of perjury that the
matters set out in the foregoing Certificate are true of his own knowledge.
Executed at Los Gatos, California on June 27, 2006.
/s/ John F. Dain
JOHN F. DAIN, President
/s/ Nicholas J. Henneman
NICHOLAS J. HENNEMAN, Secretary
OFFICERS' CERTIFICATE
Kim Boyce and Pamela Boyce hereby certify that:
1. They are the President and Secretary, respectively, of
CRYOMASTOR ACQUISITION CORP., a California corporation (the "Corporation").
2. The Agreement of Merger to which this Certificate is attached (the
"Agreement of Merger") has been duly approved by the Board of Directors of the
Corporation.
3. The Corporation one class of stock outstanding, designated "Common
Stock," of which 1,000 shares were outstanding and entitled to vote on the
merger.
4. The principal terms of the Merger Agreement were approved by the
unanimous vote of the shares of common stock outstanding which equaled or
exceeded the vote required. The vote required was a majority of the
outstanding shares of the Common Stock entitled to vote.
5. The vote of the shareholders of REFLECT SCIENTIFIC, INC., the
parent of the Corporation which parent corporation is issuing equity
securities to the shareholders of CRYOMASTOR, INC. pursuant to the Agreement
of Merger, was not required.
Each of the undersigned declares under penalty of perjury that the
matters set out in the foregoing Certificate are true of his or her own
knowledge. Executed at Salt Lake City, Utah on June 27, 2006.
/s/ Kim Boyce
Kim Boyce, President
/s/ Pamela Boyce
Pamela Boyce, Secretary