-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HpriKBsD2/DlA6Cnu1E0yNao86k+hP5TZglP5Z5V1/oyNElRC5cF3xjJ684nbjeE YPs7MBCqoGL8ufIF1J5PnA== 0000950147-96-000244.txt : 19960701 0000950147-96-000244.hdr.sgml : 19960701 ACCESSION NUMBER: 0000950147-96-000244 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960628 EFFECTIVENESS DATE: 19960628 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARIZONA INSTRUMENT CORP CENTRAL INDEX KEY: 0000724904 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL INSTRUMENTS FOR MEASUREMENT, DISPLAY, AND CONTROL [3823] IRS NUMBER: 860410138 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 033-02713 FILM NUMBER: 96588073 BUSINESS ADDRESS: STREET 1: 4114 E WOOD ST CITY: PHOENIX STATE: AZ ZIP: 85040 BUSINESS PHONE: 6024701414 MAIL ADDRESS: STREET 1: 4114 E WOOD STREET CITY: PHOENIX STATE: AZ ZIP: 85040 FORMER COMPANY: FORMER CONFORMED NAME: QUINTEL CORP DATE OF NAME CHANGE: 19870329 FORMER COMPANY: FORMER CONFORMED NAME: COMPUTRAC INSTRUMENTS INC DATE OF NAME CHANGE: 19840613 S-8 POS 1 REGISTRATION STATEMENT Registration No. 33-2713 As filed with the Securities and Exchange Commission on June 28, 1996 - -------------------------------------------------------------------------------- POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ ARIZONA INSTRUMENT CORPORATION* (Exact name of registrant as specified in its charter) DELAWARE 86-0410138 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 4114 East Wood Street Phoenix, Arizona 85040 (Address of Principal Executive Offices) (ZIP Code) ------------------ 1985 STOCK OPTION PLAN (Full title of the plan) ------------------- Copy to: SCOTT M. CARTER PAUL M. GALES, ESQ. Vice President and Chief Financial Officer Quarles & Brady ARIZONA INSTRUMENT CORPORATION Suite 400 4114 East Wood Street One East Camelback Road Phoenix, Arizona 85040 Phoenix, Arizona 85012 (Name and address of agent for service) (602) 470-1414 (Telephone number, including area code, of agent for service) - -------------------------------- * The Registrant, Arizona Instrument Corporation, a Delaware corporation, successor issuer to Arizona Instrument Corporation, an Arizona corporation ("AZI Arizona"), pursuant to a merger for the purpose of changing AZI Arizona's state of incorporation from Arizona to Delaware, hereby adopts as its own, pursuant to Rule 414(d) under the Securities Act of 1933, AZI Arizona's Registration Statement on Form S-8, File No. 33- 2713, and any amendments thereto, for all purposes of the Securities Act of 1933 and the Securities Exchange Act of 1934. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Information specified in Part I of Form S-8 (Items 1 and 2) will be sent or given to Plan participants as specified by Rule 428(b)(1) under the Securities Act of 1933. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by Arizona Instrument Corporation, a Delaware corporation (the "Registrant") (Commission File No. 0-12575), successor issuer to Arizona Instrument Corporation, an Arizona corporation, in an Arizona-to-Delaware change of domicile merger effective on June 16, 1988, with the Securities and Exchange Commission (the "Commission") pursuant to Section 13 of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-KSB, and Amendment No. 1 thereto on Form 10- KSB/A, for the fiscal year ended December 31, 1995; (b) The Registrant's Quarterly Report on Form 10-QSB for the quarterly period ended March 31, 1996; and (c) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A, dated June 26, 1996, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof. Item 4. Description of Securities. Not applicable. See Item 3(c) above. Item 5. Interests of Named Experts and Counsel. Not applicable. -1- Item 6. Indemnification of Directors and Officers. Section 145(a) of the General Corporation Law of the State of Delaware (the "General Corporation Law") provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no cause to believe his or her conduct was unlawful. Section 145(b) provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted under similar standards as set forth above, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine that despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper. Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation may purchase and maintain insurance on behalf of such person against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liabilities under such Section 145. Section 102(b)(7) of the General Corporation Law provides that a corporation in its original certificate of incorporation or an amendment thereto validly approved by stockholders may eliminate or limit personal liability of members of its board of directors or governing body for monetary damages for breach of a director's fiduciary duty. However, no such provision may eliminate or limit the liability of a director for breaching his or her duty of loyalty, failing to act in good faith, engaging in intentional misconduct or knowingly violating a law, paying a dividend or approving a stock repurchase or redemption which was illegal, or obtaining an improper personal benefit. A provision of this type has no effect on the availability of equitable remedies, such as injunction or rescission, for breach of fiduciary duty. The Company's Certificate of Incorporation contains such a provision. The Company's Certificate of Incorporation provides that the Company shall indemnify officers and directors to the full extent permitted by and in the manner permissible under the law. The Company's Bylaws provide that the Company may, to the extent authorized by the Board of Directors, indemnify employees and agents of the Company made a party to a legal proceeding by reason of that person being the Company's employee or agent. Directors and Officers of the Company are covered by directors' and officers' liability insurance under which they are insured (subject to certain exceptions and limitations specified in the policy) against expenses and liabilities arising out of proceedings to which they are parties by reason of being or having been directors or officers. -2- The Company has directors and officers' liability insurance coverage with a policy limit of $1,000,000. The policy includes coverage for liability for certain violations of state and federal securities laws. The Company has entered into indemnity agreements with its directors and officers for indemnification of and advance of expenses to such persons to the full extent permitted by law. The Company intends to execute such indemnity agreements with its future officers and directors. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. See Exhibit Index following Signatures page in this Registration Statement, which Exhibit Index is incorporated herein by reference. Item 9. Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual -3- report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Reference is made to the indemnification provisions referred to in Item 6 of this Registration Statement. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. -4- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Amendment to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona, on June 27, 1996. ARIZONA INSTRUMENT CORPORATION (Registrant) By: /s/ John P. Hudnall ---------------------- John P. Hudnall, President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Walfred R. Raisanan and John P. Hudnall, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to the Registration Statement on Form S-8, File No. 33-2713, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and any other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Person Title Date ------ ----- ---- /s/ Walfred R. Raisanan Chairman of the Board of Directors June 27, 1996 - ---------------------------------------------------- -------------- Walfred R. Raisanan President and Director /s/ John P. Hudnall (Principal Executive Officer) June 27, 1996 - ---------------------------------------------------- -------------- John P. Hudnall Chief Financial Officer (Principal /s/ Scott M. Carter Financial and Accounting Officer) June 27, 1996 - ---------------------------------------------------- -------------- Scott M. Carter /s/ S. Thomas Emerson Director June 27, 1996 - ---------------------------------------------------- -------------- S. Thomas Emerson /s/ Quinn Johnson Director June 27, 1996 - ---------------------------------------------------- -------------- Quinn Johnson /s/ Richard Long Director June 27, 1996 - ---------------------------------------------------- -------------- Richard Long /s/ Patricia Onderdonk Director June 27, 1996 - ---------------------------------------------------- -------------- Patricia Onderdonk /s/ Stanley H. Weiss Director June 27, 1996 - ---------------------------------------------------- -------------- Stanley H. Weiss
S-1 ARIZONA INSTRUMENT CORPORATION (the "Registrant") (Successor to Arizona Instrument Corporation, an Arizona corporation ("AZI Arizona"), Commission File No. 0-12575) EXHIBIT INDEX TO FORM S-8 REGISTRATION STATEMENT (As Amended by Post-Effective Amendment No.1)
Exhibit Incorporated Herein Filed Number Description by Reference To Herewith 4.1 Composite of the Registrant's Exhibit 1 to the Certificate of Incorporation, Registrant's Registration as amended through July 5, 1994 Statement on Form 8-A, filed on June 26, 1996 4.2 Bylaws of the Registrant Exhibit 2 to the Registrant's Registration Statement on Form 8-A, filed on June 26, 1996 5 Opinion of Counsel X 23.1 Consent of Independent Accountants X 23.2 Consent of Counsel Contained in Opinion filed as Exhibit 5 24 Powers of Attorney Signatures Page 99.1 1985 Stock Option Plan Exhibit 4.1 to the Registration Statement on Form S-8 for its 1985 Stock Option Plan, File No. 33-2713, filed on January 18, 1986 99.2 Agreement and Plan of X Merger by and between the Registrant and AZI Arizona, dated as of June 15, 1988
EI-1 EX-5 2 OPINION OF COUNSEL [QUARLES & BRADY LETTERHEAD] Exhibit 5 June 27, 1996 Arizona Instrument Corporation 4114 East Wood Street Phoenix, Arizona 85040 Gentlemen: We are providing this opinion in connection with Post-Effective Amendment No. 1 to the Registration Statement of Arizona Instrument Corporation (formerly Quintel Corporation), an Arizona corporation ("AZI Arizona"), on Form S-8, File No. 33-2713 (the "Registration Statement"), filed on January 10, 1986 under the Securities Act of 1933, as amended (the "Act"), with respect to the proposed sale by AZI Arizona of up to 250,000 shares of common stock of AZI Arizona ("AZI Arizona Common Stock") upon the exercise of options granted under the 1985 Stock Option Plan (the "Plan"). Arizona Instrument Corporation, a Delaware corporation (the "Company"), was created as a wholly owned subsidiary of AZI Arizona in connection with the Agreement and Plan of Merger, dated as of June 15, 1988, between AZI Arizona and the Company (the "Merger Agreement"), pursuant to which AZI Arizona was merged with and into the Company (the "Merger") effective June 16, 1988, for the purpose of changing the state of incorporation from Arizona to Delaware, and, among other things, the Plan was assumed by the Company. The shares of common stock, par value $.01 per share, of the Company which remain available for issuance under the Plan as so assumed by the Company pursuant to the Merger, in lieu of shares of AZI Arizona Common Stock, are herein referred to as the "Shares." We have examined (i) the Registration Statement, as amended by Post-Effective Amendment No. 1, (ii) the Company's Certificate of Incorporation and Bylaws, as amended to date, (iii) the Plan, as assumed by the Company pursuant to the Merger, (iv) the Merger Agreement; (v) the corporate proceedings relating to the adoption of the Plan, the issuance of the Shares, the organization of the Company and the Merger, and (vi) such other documents and records as we have deemed necessary in order to render this opinion. In rendering this opinion, we have relied as to certain factual matters on certificates of officers of the Company and of state officials. Based upon the foregoing, it is our opinion that: 1. The Company is a corporation validly existing under the laws of the State of Delaware. 2. The Shares, when issued and paid for as contemplated by the Registration Statement, as amended, and the Plan, will be validly issued, fully paid and non-assessable by the Company. We consent to the filing of this opinion as an Exhibit to the Registration Statement. In giving our consent, we do not admit that we are "experts" within the meaning of Section 11 of the Act, or that we come within the category of persons whose consent is required by Section 7 of the Act. Very truly yours, QUARLES & BRADY EX-23.1 3 CONSENT OF INDEPENDENT ACCOUNTANTS INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Post-Effective Amendment No. 1 to Registration Statement No. 33-2713 of Arizona Instrument Corporation on Form S-8 of our report dated March 13, 1996, except for Note C, as to which the date is March 26, 1996, appearing in the Annual Report on Form 10-KSB of Arizona Instrument Corporation for the year ended December 31, 1995. DELOITTE & TOUCHE LLP Phoenix, Arizona June 21, 1996 EX-99.2 4 AGREEMENT AND PLAN OF MERGER EXHIBIT 99.2 ARIZONA INSTRUMENT CORPORATION AGREEMENT AND PLAN OF MERGER This AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger Agreement") is made on June 15, 1988 by and between Arizona Instrument Corporation, an Arizona corporation ("AZI Arizona") and Arizona Instrument Corporation, a Delaware corporation ("AZI Delaware"). AZI Arizona and AZI Delaware are sometimes referred to as the "Constituent Corporations." The authorized capital stock of AZI Arizona consists of 10,000,000 shares of voting Common Stock, no par value, and the authorized capital stock of AZI Delaware consists of 5,000,000 shares of Common Stock, $.01 par value. The directors of the Constituent Corporations deem it advisable and to the advantage of the corporations that AZI Arizona merge into AZI Delaware upon the terms and conditions herein provided. NOW, THEREFORE, the parties do hereby adopt the plan of reorganization encompassed by this Merger Agreement and do hereby agree that AZI Arizona shall merge into AZI Delaware on the following terms, conditions and other provisions: 1. TERMS AND CONDITIONS 1.1 Merger. AZI Arizona shall be merged with and into AZI Delaware, and AZI Delaware shall be the surviving corporation (the "Surviving Corporation") effective upon the date when this Merger Agreement is filed with the Secretary of State of the State of Delaware (the "Effective Date"). 1.2 Succession. On the Effective Date, AZI Delaware shall succeed to all of the rights, privileges, powers and property, including without limitation, all rights, privileges, franchises, patents, trademarks, licenses, registrations and other assets of every kind and description of AZI Arizona in the manner of and as more fully set forth in Section 259 of the General Corporation Law of the State of Delaware. 1.3 Common Stock of AZI Arizona and AZI Delaware. Upon the Effective Date, by virtue of the merger and without any further action on the part of the Constituent Corporations or their shareholders, (i) each share of Common Stock of AZI Arizona issued and outstanding immediately prior thereto shall be changed and converted into one fully paid and nonassessable share of the Common Stock of AZI Delaware, $.01 par value per share; (ii) each share of Common Stock of AZI Delaware, $.01 par value per share issued and outstanding immediately prior thereto shall be redeemed at the price at which such share was initially purchased from AZI Delaware and shall be cancelled and returned to the status of authorized but unissued shares. 1.4 Stock Certificates. On and after the Effective Date, all of the outstanding certificates which prior to that time represented shares of the Common Stock of AZI Arizona ("Existing Certificates") shall be deemed for all purposes to evidence ownership of and to represent the shares of Common Stock of AZI Delaware into which the shares of AZI Arizona represented by such certificates have been converted as herein provided and shall be so registered on the books and records of AZI Delaware or its transfer agent. The registered owner of any such Existing Certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to AZI Delaware or its transfer agent, have and be entitled to exercise any voting and other rights with respect to and to receive any dividend and other distributions upon the shares of the Common Stock of AZI Delaware evidenced by such Existing Certificates as above provided. Notwithstanding any other provision herein to the contrary, the number of shares of Common Stock of AZI Delaware to which each registered owner of any such Existing Certificate shall be entitled shall be equal to the number of shares of Common Stock of AZI Arizona indicated on such certificate. 1.5 Stock Plans and Options. Upon the Effective Date, AZI Delaware will assume and continue all the existing stock options of AZI Arizona granted under any existing employee option plan of AZI Arizona as in existence immediately preceding the Effective Date. Effective upon the Effective Date, AZI Delaware hereby assumes the obligations of AZI Arizona with respect thereto, provided that the exercise price and number of shares of AZI Delaware authorized for and granted under such plans shall be adjusted to the conversion ratio as set forth in Section 1.3 above. II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS 2.1 Certificate of Incorporation and Bylaws. From and after the Effective Date, the certificate of incorporation and the bylaws of AZI Delaware as in effect on the Effective Date shall continue to be the certificate of incorporation and bylaws of AZI Delaware without change or amendment until further amendment in accordance with the provisions thereof and applicable law. 2.2 Directors. The directors of AZI Delaware immediately preceding the Effective Date shall continue to be the directors of AZI Delaware on and after the Effective Date to serve until the expiration of their terms and until their successors are elected and qualified. 2.3 Officers. the officers of AZI Delaware immediately preceding the Effective Date shall continue to be the officers of AZI Delaware on the Effective Date to serve at the pleasure of the Board of Directors of AZI Delaware. III. MISCELLANEOUS 3.1 Further Assurances. From time to time, as and when required by AZI Delaware or by its successors and assigns, there shall be executed and delivered on behalf of AZI Arizona such deeds and other instruments, and there shall be taken or caused to be taken by it such further and other action, as shall be appropriate or necessary in order to vest or perfect title to and possession of all the property, interests, assets, rights, privileges, immunities, powers, franchises and authority of AZI Arizona and otherwise to carry out the purposes of this Merger Agreement, and the officers and directors of AZI Delaware are fully authorized in the name and on behalf of AZI Arizona or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments. 3.2 Amendment. At any time before or after approval by the shareholders of AZI Arizona, this Merger Agreement may be amended in any manner (except that any of the principal terms may not be amended without the approval of the shareholders of AZI Arizona) as may be determined in the judgment of the respective Board of Directors of AZI Delaware and AZI Arizona to be necessary, desirable or expedient in order to clarify the intention of the parties hereto or to effect or facilitate the purpose and intent of this Merger Agreement. 3.3. Abandonment. At any time before the Effective Date, this Merger Agreement may be terminated and the merger contemplated hereby may be abandoned by the Board of Directors of either AZI Arizona or AZI Delaware or both, notwithstanding the approval of this Merger Agreement by the shareholders of AZI Arizona. 3.4. Counterparts. In order to facilitate the filing and recording of this Merger Agreement, the same may be executed in any number of counterparts, each of which shall be deemed to be an original. IN WITNESS WHEREOF, this Merger Agreement, having been first duly approved by the Board of Directors of AZI Arizona and AZI Delaware, is hereby executed on behalf of each such corporation and attested by their respective officers thereunto duly authorized. ARIZONA INSTRUMENT CORPORATION an Arizona corporation By /s/ John P. Hudnall ----------------------- John Hudnall, President ATTEST: /s/ Charles Byers - ------------------------ Charles Byers, Secretary ARIZONA INSTRUMENT CORPORATION a Delaware corporation By /s/ John P. Hudnall ------------------------ John Hudnall, President ATTEST: /s/ Charles Byers - --------------------- Charles Byers, Secretary STATE OF ARIZONA ) )ss. County of Maricopa ) I HEREBY CERTIFY that on this day before me, an officer duly authorized to administer oaths and take acknowledgement, personally appeared JOHN HUDNALL and CHARLES BYERS, President and Secretary, respectively, of ARIZONA INSTRUMENT CORPORATION, an Arizona corporation. WITNESS my hand and official seal of the City of Tempe, in the County and State last aforesaid this 15th day of June, 1988. /s/ Susan D. Berry ------------------------- NOTARY PUBLIC My Commission expires: 10-2-92 - ------------ -----END PRIVACY-ENHANCED MESSAGE-----