Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, except as otherwise agreed to pursuant to the terms of this Agreement, all of the rights, privileges, powers and franchises of the Company and the Merger Sub shall vest in the Surviving Corporation, and all restrictions, disabilities and duties of the Company and the Merger Sub shall become the restrictions, disabilities and duties of the Surviving Corporation.ġ.4 Formation Documents of Surviving Corporation. At the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of DGCL. (Eastern Time) on the Closing Date (the “ Calculation Time ”).ġ.3 Effect of the Merger. To the extent permitted by Law and GAAP, for Tax and accounting purposes, the parties shall treat the Closing as being effective as of 11:59 p.m. The Merger shall be effective upon the acceptance of such filing by the Secretary of State of the State of Delaware (the “ Effective Time ”). On the Closing Date, the parties hereto shall cause the Merger to be consummated by filing the Certificate of Merger in substantially the form attached hereto as Exhibit B (the “ Certificate of Merger ”) with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL. The date upon which the Closing actually occurs shall be referred to herein as the “ Closing Date ”. Section 6, and in any event no later than five (5) Business Days following the satisfaction or waiver of the conditions set forth in Section 5 and Section 6 (other than the satisfaction or waiver of those conditions that by their nature are to be satisfied on the Closing Date) provided that in no event will Closing occur prior to January 2, 2020. The closing of the transactions contemplated by this Agreement (the “ Closing ”) will take place by facsimile or email transmission of signature pages as promptly as practicable following the execution and delivery of this Agreement by the parties hereto, conditioned upon the satisfaction or waiver of the conditions set forth in Section 5 and The surviving corporation after the Merger is hereinafter referred to as the “ Surviving Corporation. At the Effective Time and subject to and upon the terms and conditions of this Agreement and the applicable provisions of the Delaware General Corporation Law (“ DGCL ”), the Merger Sub shall be merged with and into the Company, the separate corporate existence of the Merger Sub shall cease, and the Company shall continue as the surviving corporation and as a wholly-owned subsidiary of the Buyer. NOW, THEREFORE, in consideration of the mutual covenants, conditions and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:ġ.1 The Merger. The board of directors of the Buyer, the Merger Sub and the Company believe it is in the best interests of each entity and their respective equity holders that the Buyer acquire the Company through the statutory merger of the Merger Sub with and into the Company, with the Company continuing as the surviving entity (the “ Merger ”) and subject to the terms and conditions of this Agreement, all of the issued and outstanding capital stock of the Company shall be converted into the right to receive the consideration set forth herein. Pursuant to that certain Buyout Option Exercise Notice, dated November 18, 2019, from the Buyer, the Buyer has notified the Company that it has elected to exercise the Buyout Option.Ĭ. Pursuant to that certain Common Stock Purchase Agreement, dated June 27, 2019, by and between the Company and the Buyer (the “ Common Stock Purchase Agreement ”), the Company issued 11,986 shares of Class B Common Stock of the Company to the Buyer and granted the Buyer the option to purchase all of the other issued and outstanding Company Capital Stock pursuant to this Agreement (the “ Buyout Option ”).ī. Capitalized terms used in this Agreement are defined in Exhibit A. THIS AGREEMENT AND PLAN OF MERGER (this “ Agreement ”) is entered into as of Decem(the “ Execution Date ”), by and among Cubic Corporation, a Delaware corporation (the “ Buyer ”), Locus Merger Sub, Inc., a Delaware corporation (the “ Merger Sub ”), Pixia Corp., a Delaware corporation (the “ Company ”), and FG Pixia LLC, solely in its capacity as the representative of all of the Equityholders (defined below) (the “ Equityholder Representative ”).
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