EXHIBIT 10.2
AGREEMENT OF MERGER
This AGREEMENT OF MERGER (the "Agreement"), dated as of March 12,
1997, is entered into by and between Intelicom Corporation, a corporation
organized and incorporated under the laws of the State of Delaware
(hereinafter referred to as "Intelicom"), and IntraTel Acquisition Company,
Inc, a corporation organized and incorporated under the laws of the State
of Florida (hereinafter referred to as "IntraTel").
WHEREAS, the parties hereto desire that IntraTel be merged with and
into Intelicom pursuant to this Agreement providing for such merger (the
"Merger") on the date and at the time provided for herein (the "Effective
Date"); and
WHEREAS, the Agreement provides for the issuance of shares of
Intelicom stock ("Stock") upon the merger being effective; and
WHEREAS, the parties hereto desire to set forth certain
representations, warranties, and covenants made by each to the other as an
inducement to the execution and delivery of this Agreement and certain
additional agreements related to the Merger;
Now, therefore, in consideration of the premises and of the mutual
representations, warranties, and covenants herein contained, the parties
hereby agree as follows:
ARTICLE I
THE MERGER
1.01 THE MERGER AND CLOSING. Upon the terms and subject to the
acceptance of this Agreement, the Merger shall be consummated (the
"Closing") as of the Effective Date and in accordance with all applicable
state and federal laws, on the date and at the time specified hereinafter.
At the Closing, upon the terms and subject to the conditions of this
Agreement, IntraTel shall be merged with and into Intelicom in accordance
with all applicable state and federal laws, and the separate existence of
IntraTel shall thereupon cease, and Intelicom shall continue its corporate
existence under the laws of the State of Delaware.
1.02 EFFECTIVE DATE. The Merger shall become effective upon the later
to occur of the date and time of filing of a certificate of merger with the
Secretary of State of the State of Delaware in accordance with the
provisions of the General Corporation Law of the State of Delaware (the
"Certificate of Merger") or the receipt of any and all necessary approvals
from the Securities Exchange Commission. The date and time when the Merger
shall become effective is herein referred to as the "Effective Date."
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1.03 CERTIFICATE OF INCORPORATION. The Articles of Incorporation of
Intelicom shall be the Articles of Incorporation of the surviving
corporation after completion of the merger contemplated herein.
1.04 DELIVERY OF SHARES. On the Effective Date, Intelicom shall issue
and deliver to the shareholders of IntraTel the number of shares in
accordance with Section 9.01 hereinbelow.
ARTICLE II
INTRATEL's
REPRESENTATIONS AND WARRANTIES
IntraTel represents and warrants to Intelicom as of the date hereof
and on the Effective Date as follows:
2.01 GOOD STANDING. IntraTel is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware,
and it is duly authorized, qualified, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to carry on
its business in the places and in the manner as now conducted. This
Agreement has been duly authorized by all necessary corporate action and
has been executed and delivered by an authorized officer of IntraTel, and
constitutes the valid and binding agreement of IntraTel enforceable in
accordance with its terms.
2.02 STOCKHOLDERS AND STOCK. The authorized capital stock of IntraTel
consists solely of shares of Common Stock, no par value, of which 2,000
shares are issued and outstanding. Each share of stock is duly and validly
authorized and issued, fully paid, and nonassessable. Except as described
in the Confidential Private Offering Memorandum dated December 8, 1996 (the
"CPOM") which has been previously provided to Intelicom's representatives,
no option, warrant, call, or commitment of any kind obligating IntraTel to
issue any of its capital stock exists.
2.03 FINANCIAL INFORMATION. IntraTel has fully and accurately
disclosed to Intelicom all financial information regarding IntraTel,
including accurate lists of its liabilities, accounts receivable, fixed
assets and other assets.
2.04 LITIGATION. There are no material legal actions, suits,
arbitrations, investigations or other legal, administrative or governmental
proceedings pending or, to the knowledge of IntraTel, threatened.
2.05 NO CONSENTS OR APPROVALS. IntraTel is not required to obtain the
consent, approval, authorization, or order of any court of governmental
instrumentality, agency or body to consummate the transactions contemplated
hereby or if any such consent, approval, authorization, or order is
required, IntraTel will obtain such prior to or
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as soon after the Closing as possible.
2.06 TITLE TO ASSETS. IntraTel, at the Closing, will have good and
marketable title to its assets free and clear of any and all liens,
mortgages, security interests, claims, charges, demands, options, rights or
otherwise, except as provided in the accompanying schedules.
2.07 FULL DISCLOSURE. No statement contained in any document,
certificate or other writing furnished or to be furnished by IntraTel to
Intelicom pursuant to the provisions of this Agreement contains or shall
contain any untrue statement of a material fact or shall omit to state any
material fact necessary, in the light of the circumstances under which it
was made, to make the statements therein not misleading.
2.08 DISCLOSURE OF CONTRACTS. IntraTel has disclosed all agent
contracts, sales contracts, franchise contracts and other contracts,
written and oral, between it and any person, firm or individual which
relate to its business. IntraTel has not failed to disclose any agent
contracts, sales contracts, franchise contracts or other contracts, written
or oral, that would impede or restrict the transaction contemplated by this
Agreement or that would result in Intelicom's commitment to pay
commissions, fees, or other monies, whether in cash or common stock.
ARTICLE III
INTELICOM's
REPRESENTATIONS AND WARRANTIES
Intelicom represents and warrants to Intelicom as of the date hereof
and on the Effective Date as follows:
3.01 GOOD STANDING. Intelicom is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware,
and it is duly authorized, qualified, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to carry on
its business in the places and in the manner as now conducted. This
Agreement has been duly authorized by all necessary corporate action and
has been executed and delivered by an authorized officer of the
Corporation, and constitutes the valid and binding agreement of Intelicom
enforceable in accordance with its terms.
3.02 STOCKHOLDERS AND STOCK. The authorized capital stock of
Intelicom consists of 100,000,000 shares of Common Stock, $0.001 par value,
of which 1,527,620 shares are issued and outstanding, and 25,000,000 of
Preferred Stock, $0.001 par value, of which zero (0) shares are issued and
outstanding. Each share of said stock is duly and validly authorized and
issued, fully paid, and nonassessable. There are currently outstanding
warrants to purchase an additional 3238 shares of
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Intelicom Common Stock exercisable at $6.30 per share for a period of four
(4) years commencing one (1) year from the date of the closing of
Intelicom's initial public offering which took place on or about April 27,
1995
3.03 FINANCIAL INFORMATION. Intelicom has fully and accurately
disclosed to IntraTel all financial information regarding Intelicom,
including accurate lists of its liabilities, accounts receivable, fixed
assets and other assets.
3.04 LITIGATION. There are no material legal actions, suits,
arbitrations, investigations or other legal, administrative or governmental
proceedings pending or, to the knowledge of Intelicom, threatened.
3.05 NO CONSENTS OR APPROVALS. Intelicom is not required to obtain
the consent, approval, authorization, or order of any court of governmental
instrumentality, agency or body to consummate the transactions contemplated
hereby or if any such consent, approval, authorization, or order is
required, Intelicom will obtain such prior to or as soon after the Closing
as possible.
3.06 TITLE TO ASSETS. Intelicom, at the Closing, will have good and
marketable title to its assets free and clear of any and all liens,
mortgages, security interests, claims, charges, demands, options, rights or
otherwise, except as provided in the accompanying schedules.
3.07 FULL DISCLOSURE. No statement contained in any document,
certificate or other writing furnished or to be furnished by Intelicom to
IntraTel pursuant to the provisions of this Agreement contains or shall
contain any untrue statement of a material fact or shall omit to state any
material fact necessary, in the light of the circumstances under which it
was made, to make the statements therein not misleading.
3.08 DISCLOSURE OF CONTRACTS. Intelicom has disclosed all agent
contracts, sales contracts, franchise contracts and other contracts,
written and oral, between it and any person, firm or individual which
relate to its business. Intelicom has not failed to disclose any agent
contracts, sales contracts, franchise contracts or other contracts, written
or oral, that would impede or restrict the transaction contemplated by this
Agreement or that would result in IntraTel's commitment to pay commissions,
fees, or other monies, whether in cash or common stock.
ARTICLE IV
INTRATEL's COVENANTS
IntraTel covenants and agrees as follows:
4.01 CONSENTS. If applicable, IntraTel shall use its best efforts to
obtain any
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consents as may be required of IntraTel herein to consummate the
transactions contemplated hereby.
4.02 NOTICE OF DEFAULT. Prior to the Closing, IntraTel shall give
prompt written notice to Intelicom of any notice of default, written threat
of default, lawsuit or arbitration claim received by IntraTel, subsequent
to the date hereof.
4.03 ACCESS. IntraTel shall afford (or shall cause to be afforded) to
the officers and authorized representatives of Intelicom access to the
books and records of IntraTel. IntraTel shall cooperate with Intelicom, its
representatives and counsel in the preparation of any documents or
materials required by any governmental agency or other party in connection
with or relating to the transactions contemplated herein.
4.04 CONFIDENTIAL INFORMATION. IntraTel shall cause all information
furnished by Intelicom in connection with the negotiation and performance
of this Agreement to be treated as confidential, except such information as
IntraTel may be required to disclose by law and except for any information
that is generally available to the public, previously known to IntraTel or
obtained from third parties owing no obligation of confidentiality to
Intelicom.
4.05 CAUSE CONDITIONS TO BE SATISFIED. IntraTel will use its best
efforts to cause the conditions to the obligations of IntraTel and
Intelicom under this Agreement to be satisfied.
ARTICLE V
INTELICOM's COVENANTS
Intelicom covenants and agrees as follows:
5.01 CONSENTS. If applicable, Intelicom shall use its best efforts to
obtain any consents as may be required of Intelicom herein to consummate
the transactions contemplated hereby.
5.02 NOTICE OF DEFAULT. Prior to the Closing, Intelicom shall give
prompt written notice to IntraTel of any notice of default, written threat
of default, lawsuit or arbitration claim received by Intelicom, subsequent
to the date hereof.
5.03 ACCESS. Intelicom shall afford (or shall cause to be afforded)
to the officers and authorized representatives of IntraTel access to the
books and records of Intelicom. Intelicom shall cooperate with IntraTel,
its representatives and counsel in the preparation of any documents or
materials required by any governmental agency or other party in connection
with or relating to the transactions contemplated herein.
5.04 CONFIDENTIAL INFORMATION. Intelicom shall cause all information
furnished
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by IntraTel in connection with the negotiation and performance of this
Agreement to be treated as confidential, except such information as
Intelicom may be required to disclose by law and except for any information
that is generally available to the public, previously known to Intelicom or
obtained from third parties owing no obligation of confidentiality to
IntraTel.
5.05 CAUSE CONDITIONS TO BE SATISFIED. Intelicom will use its best
efforts to cause the conditions to the obligations of IntraTel and
Intelicom under this Agreement to be satisfied.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS
OF INTRATEL
IntraTel's obligations shall be subject, to the extent not waived, to
the satisfaction of each of the following conditions at the Closing:
6.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the IntraTel contained in this Agreement shall be true and
correct in all material respects as of the date when made and as of the
date of the Closing as though such representations and warranties had been
made on and as of the date of the Closing.
6.02 PERFORMANCE OF THIS AGREEMENT. Intelicom shall have performed
and complied in all material respects with all covenants, conditions and
agreements required by this Agreement to be performed or complied with by
any and all of them prior to or on the date of the Closing.
6.03 PROCEEDINGS. All corporate and other proceedings to be taken by
Intelicom in connection with the transactions contemplated hereby shall
have been completed and all such proceedings and all documents incident
thereto shall be reasonably satisfactory in substance and form to IntraTel.
6.04 CONSENTS, REGULATORY FILINGS AND APPROVALS. All consents and
authorizations by third parties and all governmental consents, approvals,
licenses and permits, the granting of which are necessary for the
consummation of the transactions contemplated hereby or for preventing the
termination of any right privilege, license or agreement of Intelicom which
is material to IntraTel upon the consummation of the transactions
contemplated hereby, shall have been obtained or made prior to the Closing
or shall be obtained as soon thereafter as possible.
6.05 LITIGATION. No order of any court or administrative agency shall
be in effect which restrains or prohibits the transaction contemplated
hereby or which would limit or affect Intelicom and, there shall not have
been threatened, nor shall there be pending any action or proceeding by or
before any court or governmental agency or
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other regulatory or administrative agency or commission, challenging any of
the transactions contemplated by this Agreement.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS
OF INTELICOM
Intelicom's obligations shall be subject, to the extent not waived, to
inure the satisfaction of each of the following conditions at the Closing:
7.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Intelicom contained in this Agreement shall be true and
correct in all material respects as of the date when made and as of the
date of the Closing as though such representations and warranties had been
made on and as of the date of the Closing.
7.02 PERFORMANCE OF THIS AGREEMENT. IntraTel shall have performed and
complied in all material respects with all covenants, conditions and
agreements required by this Agreement to be performed or complied with by
any and all of them prior to or on the date of the Closing.
7.03 PROCEEDINGS. All corporate and other proceedings to be taken by
IntraTel in connection with the transactions contemplated hereby shall have
been completed and all such proceedings and all documents incident thereto
shall be reasonably satisfactory in substance and form to Intelicom.
7.04 CONSENTS, REGULATORY FILINGS AND APPROVALS. All consents and
authorizations by third parties and all governmental consents, approvals,
licenses and permits, the granting of which are necessary for the
consummation of the transactions contemplated hereby or for preventing the
termination of any right privilege, license or agreement of IntraTel which
is material to Intelicom upon the consummation of the transactions
contemplated hereby, shall have been obtained or made prior to the Closing
or shall be obtained as soon thereafter as possible.
7.05 LITIGATION. No order of any court or administrative agency shall
be in effect which restrains or prohibits the transaction contemplated
hereby or which would limit or affect Intelicom and, there shall not have
been threatened, nor shall there be pending any action or proceeding by or
before any court or governmental agency or other regulatory or
administrative agency or commission, challenging any of the transactions
contemplated by this Agreement.
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ARTICLE VIII
EFFECT OF MERGER
8.01 Upon the consummation of the Merger as hereinabove provided (the
"Effective Date"), the effect of the Merger shall be that established by
the corporation laws of the State of Delaware, and without limitation
thereof, shall include the following:
a. Intelicom and IntraTel shall be one corporation, which shall be
Intelicom, and which shall survive the merger for that purpose.
b. The separate existence of IntraTel shall cease.
c. Intelicom shall possess all the rights, privileges, and
franchises previously possessed by it, and those possessed by IntraTel.
d. All of the property and assets of whatsoever kind or description
of IntraTel, and all debts due on whatever account to it, shall be taken
and be deemed to be transferred to and vested in Intelicom without further
act or deed.
e. Intelicom shall be responsible for all the liabilities and
obligations of IntraTel, including but not limited to all liabilities
presently existing pursuant to the CPOM.
f. Intelicom shall change its name to "IntraTel Group, Ltd."
ARTICLE IX
MANNER OF CONVERSION OF SHARES
9.01 MANNER OF CONVERSION OF SHARES. The manner and basis of
converting the shares of IntraTel into shares of Intelicom shall be as
follows:
a. All shares of Common Stock of Intelicom now authorized and issued
and outstanding shall remain outstanding and shall not be affected by the
Merger.
b. The current shareholders of IntraTel will surrender their
existing shares of common stock of IntraTel in exchange for 1,631,626
shares of Intelicom Common Stock LESS the number of shares which are
required to satisfy the equity obligations to the investors in IntraTel's
private placement pursuant to the CPOM (the number of which to be
determined by dividing the total private placement investment money by the
price per share of the secondary offering to be consummated prior to June
30, 1997). The shares of Intelicom Common Stock to be received by
IntraTel's shareholders pursuant to this paragraph (excluding the private
placement investors) shall be distributed to said IntraTel shareholders on
a pro rata basis.
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ARTICLE X
ARTICLES OF INCORPORATION AND
BY-LAWS OF SURVIVING CORPORATION
10.01 The Articles of Incorporation and the Bylaws of Intelicom are
not altered or otherwise affected by virtue of the Merger.
ARTICLE XI
GENERAL
11.01 ADDITIONAL INSTRUMENTS. The parties hereto shall deliver or
cause to be delivered as of the Effective Date, and at such other times and
places as shall be reasonably agreed on, such additional instruments as any
party may reasonably request for the purpose of carrying out this
Agreement.
11.02 ASSIGNMENT. This Agreement may not be assigned (except by
operation of law) and shall be binding upon and shall to the benefit of the
parties hereto, and the successors of the heirs and legal representatives
of the parties hereto.
11.03 ENTIRE AGREEMENT. This Agreement and the documents delivered
pursuant hereto constitute the entire agreement and understanding between
the parties hereto and supersede any prior agreement and understanding
relating to the subject matter of this Agreement. This Agreement may be
modified or amended only by a duly authorized written instrument executed
by the parties hereto.
11.04 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original and all
of which together shall constitute but one and the same instrument.
11.05 SURVIVORSHIP. All warranties, covenants, representations, and
guarantees shall survive the closing and execution of the documents
contemplated by this Agreement.
ARTICLE XII
TERMINATION
12.01 MUTUAL CONSENT. This Agreement may be terminated at any time
prior to the Closing by mutual consent of IntraTel and Intelicom, expressed
by action of their respective Boards of Directors.
12.02 FINAL DATE. Anything contained in this Agreement to the
contrary notwithstanding, unless extended by mutual consent of IntraTel and
Intelicom, expressed by action of their respective Boards of Directors,
this Agreement shall terminate if the Closing shall not have occurred by
the close of business on June 30,
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1997.
12.03 REMEDIES ON TERMINATION. In the event that any party hereto,
without the right to do so under this Agreement, shall fail or refuse to
consummate the transactions contemplated by this Agreement, or if any
default under, or breach of, any representation, warranty, covenant or
condition of this Agreement on the part of any party shall have occurred
that results in the failure to consummate the transactions contemplated
hereby, then, in addition to any other remedies provided in this agreement
or by applicable law, the nondefaulting party shall be entitled to obtain
from the defaulting party costs and expenses, including reasonable
attorney's fees, incurred by it in enforcing its rights hereunder.
ARTICLE XIII
INDEMNIFICATION
13.01 Intelicom agrees to indemnify, defend and hold harmless IntraTel
from and against all losses, liabilities, damages, administrative or civil
penalties, fines, deficiencies, costs or expenses (including interest,
penalties and reasonable attorney's fees and disbursements) based upon,
arising out of or otherwise in respect of (i) any material breach by
Intelicom of any representation, warranty, covenant or agreement contained
in this Agreement; (ii) the conduct of Intelicom's business from the date
hereof through the date of Closing, whether or not asserted prior to the
date of Closing; and (iii) all obligations of Intelicom, of every kind or
nature whatsoever, which are not specifically disclosed to IntraTel prior
to the execution of this Agreement.
13.02 IntraTel agrees to indemnify, defend and hold harmless
Intelicom from and against all losses, liabilities, damages, administrative
or civil penalties, fines, deficiencies, costs or expenses (including
interest, penalties and reasonable attorney's fees and disbursements) based
upon, arising out of or otherwise in respect of (i) any material breach by
IntraTel of any representation, warranty, covenant or agreement contained
in this Agreement; (ii) the conduct of IntraTel's business from the date
hereof through the date of Closing, whether or not asserted prior to the
date of Closing; and (iii) all obligations of IntraTel, of every kind or
nature whatsoever, which are not specifically disclosed to Intelicom prior
to the execution of this Agreement.
ARTICLE XIV
MISCELLANEOUS
14.01 GOVERNING LAW. It is the intention of the parties hereto that
this Agreement be governed by and construed in accordance with the laws of
the State of Delaware.
14.02 NOTICES. Any notice permitted or required to be given herein
shall be deemed to have been given either upon personal delivery or three
days after deposit in
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the United States mails, certified mail, postage prepaid and addressed to
the intended recipient at the following address:
INTELICOM CORPORATION INTRATEL ACQUISITION COMPANY, INC.
00000 X.X. Xxxxxxx 00 Xxxxx Xxx Xxxx
Xxxxx 000 000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxx, Xxxxxxx, 00000
Attention: Xxxxx Xxxxxx, President Attention: Xxxxxx X. Xxx XX,
Chairman
14.03 LITIGATION. In the event of litigation between the parties
arising out of any term or provision of this Agreement, the prevailing
party shall be entitled to recover its costs and attorney's fees from the
losing party.
14.04 EXPENSES. Each of the parties hereto shall pay its own
expenses incurred in connection with the preparation, negotiation,
execution, delivery and consummation of this Agreement.
14.05 CUMULATIVE REMEDIES. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any
other remedy, and each remedy shall be cumulative and shall be in addition
to all other remedies given hereunder or now or hereafter existing at law
or in equity or by statute or otherwise. The election of any one or more
remedies by Intelicom or IntraTel shall not constitute a waiver of the
right to pursue other available remedies.
14.06 WRITTEN DISCLOSURES INCORPORATED BY REFERENCE. All written
disclosures made by each party to the other shall be incorporated herein by
reference and each party hereby warrants and represents that such written
disclosures are true and accurate to the best of said party's knowledge and
belief.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written
INTELICOM CORPORATION INTRATEL ACQUISITION COMPANY, INC.
By: /s/ XXXXX XXXXXX By: /s/ XXXXXX X. XXX
------------------------- -------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx X. Xxx XX
Title: President Title: Chairman
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