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Exhibit 10.31
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the " Agreement ") is
dated as of August 24, 2005, by and among Monotype Holdings
Inc., a Delaware corporation (" Parent "), MIHC Merger Sub
Inc., a Delaware corporation and wholly-owned subsidiary of Parent
(" Merger Sub "), and Monotype Imaging Holdings Corp., a
Delaware corporation (" MIHC ").
W I T N E S S E T H:
WHEREAS, the respective boards of directors of each of Parent,
Merger Sub and MIHC have (i) determined that the merger of
Merger Sub with and into MIHC (the " Merger ") is advisable
and in the best interests of Parent, Merger Sub and MIHC and their
respective stockholders, (ii) approved and adopted this
Agreement and the Merger and (iii) recommended the approval
and adoption of this Agreement and the Merger by their respective
stockholders, all in accordance with the applicable provisions of
the Delaware General Corporation Law (the " DGCL ").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be
legally bound hereby, Parent, Merger Sub and MIHC agree as
follows:
1. The Merger.
(a) At the Effective Time (as defined in Section 1(b)),
Merger Sub shall be merged with and into MIHC in accordance with
the DGCL and upon the terms set forth in this Agreement, whereupon
the separate existence of Merger Sub shall cease and MIHC shall be
the surviving corporation (the " Surviving Corporation
").
(b) Upon the receipt of all necessary corporate approvals, MIHC
shall file a certificate of merger (the " Certificate of
Merger ") with the Delaware Secretary of State and make any
other filings or recordings required under the DGCL in connection
with the Merger. The Merger shall become effective at such time as
the Certificate of Merger is duly filed with the Delaware Secretary
of State (or at such later time as may be specified in the
Certificate of Merger) (the " Effective Time ").
(c) From and after the Effective Time, the Surviving Corporation
shall possess all the rights, powers, privileges and franchises and
be subject to all of the obligations, liabilities, restrictions and
disabilities of MIHC and Merger Sub, all as provided under the
DGCL, except as contemplated in Sections 6 and 8.
2. Certificate of Incorporation . The certificate of
incorporation of MIHC, as in effect at the Effective Time, shall be
the certificate of incorporation of the Surviving Corporation until
thereafter amended or repealed in accordance with applicable
law.
3. By-laws . The by-laws of MIHC, as in
effect at the Effective Time, shall be the by-laws of the Surviving
Corporation until thereafter amended or repealed in accordance with
applicable law.
4. Directors and Officers of the Surviving Corporation .
The directors and officers of MIHC shall, from and after the
Effective Time, be the directors and officers of the Surviving
Corporation, until their respective successors shall have been duly
elected or appointed and qualified in accordance with applicable
law or until their earlier death, resignation or removal.
5. Conversion and Cancellation of Capital Stock . At the
Effective Time, by virtue of the Merger and without any further
action on the part of Parent, Merger Sub or MIHC or the holders of
their respective capital stock:
(a) Merger Sub Common Stock . Each share of Merger Sub
common stock, par value $0.01 per share, issued and outstanding
immediately prior to the Effective Time shall be converted into and
become 917.338 shares of common stock and 5,846.155 shares of
convertible preferred stock of the Surviving Corporation, each with
a par value of $0.01 per share, with the rights, powers and
privileges defined by the certificate of incorporation of the
Surviving Corporation.
(b) MIHC Common Stock . Each share of MIHC common stock,
par value $0.01 per share (" MIHC Common Stock "), issued
and outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock, par value
$0.01 per share, of the Parent (" Parent Common Stock "),
with the rights, powers and privileges defined by the certificate
of incorporation of the Parent, as in effect at the Effective Time
and as may be amended from time to time (the " Parent Charte
r"). As of the Effective Time, all shares of MIHC Common Stock
outstanding immediately prior to the Effective Time will be deemed
to be no longer outstanding and will automatically be canceled and
retired and will cease to exist, and each holder thereof will cease
to have any rights with respect thereto, except for the right to
receive shares of Parent Common Stock in amounts determined in
accordance with this Agreement.
(c) MIHC Convertible Preferred Stock . Each share of MIHC
convertible preferred stock, par value $0.01 per share (" MIHC
Preferred "), issued and outstanding immediately prior to the
Effective Time shall be converted into and become (i) the
right to receive from Parent an amount in cash equal to $8.26 and
(ii) one share of convertible preferred stock, par value $0.01
per share, of the Parent (" Parent Convertible Preferred ")
with the rights, powers and privileges defined by the Parent
Charter. Parent, Merger Sub and MIHC have determined that the cash
portion of the consideration to which a holder of MIHC Preferred is
entitled hereunder represents in excess of 20% of the total value
of such consideration. As of the Effective Time, all shares of MIHC
Preferred outstanding immediately prior to the Effective Time will
be deemed to be no longer outstanding and will automatically be
canceled and retired and will cease to exist, and each holder
thereof will cease to have any rights with respect thereto, except
for the right to receive shares of Parent Convertible Preferred and
cash in amounts that are determined in accordance with this
Agreement.
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(d) Parent Common Stock . Each share of
Parent Common Stock issued and outstanding or held in treasury
immediately prior to the Effective Time shall be cancelled and
retired and shall cease to exist, and no consideration shall be
delivered in exchange therefor.
(e) Treatment of Options and Restricted Stock Awards .
Upon the Effective Time, assuming the receipt of any necessary
corporate approvals, Parent shall assume the Monotype Imaging
Holdings Corp. 2004 Stock Option and Grant Plan (the " Equity
Incentive Plan "), which shall thereafter be known as the
"Monotype Holdings Inc. 2004 Stock Option and Grant Plan", and each
outstandi
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