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Exhibit 2.2
FORM OF AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER dated as of ________________________, 1996
(this "AGREEMENT") involves VIEW TECH ACQUISITION, INC., a Delaware corporation
("VTAI"), USTELECENTERS,INC., a Massachusetts corporation ("UST"), and VIEW
TECH, INC., a California corporation ("VIEW TECH"). VTAI, UST and View Tech
are sometimes referred to herein as the "CONSTITUENT CORPORATIONS," and VTAI is
sometimes referred to herein as the "SURVIVING CORPORATION."
RECITALS
A. VTAI is a corporation duly organized and existing under the
laws of the State of Delaware.
B. UST is a corporation duly organized and existing under the
laws of the State of Massachusetts.
C. View Tech is a corporation duly organized and existing under
the laws of the State of California.
D. The authorized capital stock of VTAI consists of One Thousand
(1,000) shares of Common Stock, $.0001 par value per share, all of which One
Thousand (1,000) shares are issued and outstanding. View Tech, Inc. is the sole
stockholder of VTAI.
E. The authorized capital stock of UST consists of Eleven Million
(11,000,000) shares of common stock with no par value ("UST COMMON STOCK"), of
which ___________________________________________________________ (9,___,___)
shares are issued and outstanding. There are also outstanding options for the
purchase of ______________________________________________ (_______) shares of
UST Common Stock, excluding options to purchase ________________ (______)
shares which shall be cancelled prior to the Effective Time (defined below).
F. The authorized capital stock of View Tech consists of
5,000,000 shares of preferred stock, none of which is outstanding, and
10,000,000 shares of common stock, par value $.01 ("VIEW TECH COMMON STOCK"),
of which ____________________________________________________________
(_________) shares are issued and outstanding, and none of which are held in
treasury.
G. The respective Boards of Directors of UST, VTAI and View Tech
have resolved that UST and VTAI be merged under and pursuant to the General
Corporation Law of the State of Delaware and the General Corporation Law of the
State of Massachusetts into a single corporation existing under the laws of the
State of Delaware.
H. The respective Boards of Directors of UST, VTAI and View Tech
have approved the merger upon the terms and conditions set forth herein and
have approved this Agreement and the Boards of Directors of UST, View Tech and
VTAI have directed that this Agreement be submitted to a vote of their
respective stockholders.
NOW THEREFORE, each Constituent Corporation adopting this Agreement
agrees as follows:
1. MERGER
1.1 Merger
In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the Massachusetts General Corporation Law,
UST shall be, at the Effective Time (as defined in Paragraph 1.2 below), merged
with and into VTAI ("MERGER"), and the separate existence of UST shall cease
and VTAI shall be the surviving corporation.
1.2 Filing and Effectiveness
The Merger shall become effective when this Agreement, together
with the resolutions of the boards of directors of each of UST, View Tech and
VTAI adopting and approving same, shall have been filed with the Secretary of
State of the State of Delaware (the "EFFECTIVE TIME").
For purposes of Massachusetts Law, the Merger shall become
effective as to UST on the Effective Date of the Merger, upon such filing in
Massachusetts as is required by the General Corporation Law of Massachusetts,
which filing will be made by UST and/or VTAI, as applicable.
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1.3 Certificate of Incorporation
Except for the change of the name of the Surviving Corporation
as provided in this Paragraph 1.3, the Certificate of Incorporation of VTAI as
in effect immediately prior to the Effective Date of Merger shall continue in
full force and effect as the Certificate of Incorporation of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law. From and after the Effective Time, the Certificate of
Incorporation of VTAI shall be amended by deleting Article FIRST in its
entirety and substituting in lieu thereof the following: "FIRST: The name of
this Corporation is USTeleCenters, Inc."
1.4 Bylaws
The Bylaws of VTAI as in effect immediately prior to the
Effective Time shall continue in full force and effect as the Bylaws of the
Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
1.5 Agreements
All agreements to which UST is a party and which are in effect
immediately prior to the Effective Date of Merger shall continue in full force
and effect and shall be assumed in their entirety by the Surviving Corporation
as of the Effective Date of Merger.
1.6 Directors and Officers
The directors and officers of VTAI immediately prior to the
Effective Time shall be the directors and officers of the Surviving Corporation
until their successors shall have been duly elected and qualified or until
otherwise as provided by law, the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
1.7 Effect of Merger
Upon the Effective Date of Merger, the separate existence of UST
shall cease and VTAI, as the Surviving Corporation, (i) shall continue to
possess all of its assets, rights, powers and property as constituted
immediately prior to the Effective Date of Merger, shall be subject to all
actions previously taken by the UST Board of Directors and shall succeed,
without other transfer, to all of the assets, rights, powers and property of
UST in the manner as more fully set forth in Section 259 of the Delaware
General Corporation Law, and (ii) shall continue to be subject to all of its
debts, liabilities and obligations as constituted immediately prior to he
Effective Date of Merger and shall succeed, without other transfer, to all of
the debts, liabilities and obligations of UST in the same manner as if VTAI had
itself incurred them, all as more fully provided under the applicable
provisions of the Delaware General Corporation Law and the Massachusetts
General Corporation Law.
2. MANNER OF CONVERSION OF STOCK
2.1 UST Securities
At the Effective Time, by virtue of the Merger and without any
action on the part of View Tech, VTAI , UST or the holders of any of the
foregoing securities, at and as of the Effective Time, (1) each share of UST
Common Stock (other than any shares held by dissenting shareholders or View
Tech-owned shares) shall be converted into the right to receive .25293 shares
of View Tech Common Stock (the ratio of .25293 View Tech shares to one share of
UST Common Stock is referred to herein as the "CONVERSION RATIO"), (1) each
share held by a dissenting shareholder shall be converted into the right to
receive payment from View Tech with respect thereto in accordance with the
provisions of the Massachusetts General Corporation Law, and (2) each View
Tech-owned share of UST Common Stock shall be canceled. No fractional shares
of View Tech Common Stock shall be issued. Any conversion which would
otherwise result in a fractional share shall be rounded up to the nearest whole
share View Tech Common Stock.
2.2 Exchange of Certificate
(i) Immediately after the Effective Time, (A) View
Tech will furnish to U.S. Stock Transfer Corporation (the "EXCHANGE AGENT")
instructions directing the Exchange Agent to issue to each UST shareholder
(other than holders of dissenting Shares and View Tech-owned shares) their pro
rata share of View Tech Common Stock shares equal to the product of (I) the
Conversion Ratio times (II) the number of shares of UST Common Stock such
shareholder owns, and (B) View Tech will cause the Exchange Agent to mail a
letter of transmittal to each record holder of outstanding shares of UST Common
Stock for the holder to use in surrendering the certificates which represented
his, her, or its shares of UST Common Stock in exchange for a certificate
representing the number of shares of View Tech Common Stock to which he, she,
or it is entitled.
(ii) View Tech will not pay any dividend or make any
distribution on shares of View Tech Common Stock (with a record date at or
after the Effective Time) to any record holder of outstanding shares of UST
Common Stock until the holder surrenders for exchange his, her, or its
certificates which represented shares of UST Common Stock. View Tech instead
will pay the dividend or make the distribution to the Exchange Agent in trust
for the benefit of the holder pending surrender and exchange. View Tech may
cause the
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Exchange Agent to invest any cash the Exchange Agent receives from View Tech as
a dividend or distribution in one or more of the permitted investments;
provided, however, that the terms and conditions of the investments shall be
such as to permit the Exchange Agent to make prompt payments of cash to the
holders of outstanding shares of UST Common Stock as necessary. View Tech may
cause the Exchange Agent to pay over to View Tech any net earnings with respect
to the investments, and View Tech will replace promptly any cash which the
Exchange Agent loses through investments. In no event, however, will any
holder of outstanding shares of UST Common Stock be entitled to any interest or
earnings on the dividend or distribution pending receipt.
(iii) View Tech may cause the Exchange Agent to
return any shares of View Tech Common Stock and dividends and distributions
thereon remaining unclaimed 180 days after the Effective Time, and thereafter
each remaining record holder of outstanding shares of UST Common Stock shall be
entitled to look to View Tech (subject to abandoned property, escheat, and
other similar laws) as a general creditor thereof with respect to the View Tech
shares and dividends and distributions thereon to which he, she, or it is
entitled upon surrender of his, her, or its certificates.
(iv) After the close of business on day of the
Effective Time, transfers of UST shares outstanding prior to the Effective Time
shall not be made on the stock transfer books of the Surviving Corporation. On
or after the Effective Time, any share of UST Common Stock presented to View
Tech, the Exchange Agent, or the Surviving Corporation, as the case may be,
shall be converted into the applicable number of shares of View Tech Common
Stock.
2.3 Endorsement of Surrendered Shares
If any certificate for shares of View Tech Common Stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and that the
party requesting such transfer pay to the Surviving Corporation any transfer or
other taxes payable by reason of the issuance of such new certificate in the
name other than that of the registered holder of the certificate surrendered,
or establish to the satisfaction of View Tech and VTAI that such tax has been
paid or is not payable.
3. GENERAL
3.1 Further Assurances
UST, View Tech and VTAI each covenants and agrees that it will,
on or after the Effective Time, take such other actions as may be required by
the Massachusetts General Corporation Law, the California General Corporations
Law and/or the Delaware General Corporation Law.
3.2 Registered Office
The registered office of the Surviving Corporation in the State
of Delaware is located at 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of New
Castle, Delaware and Corporation Trust Company is the registered agent of the
Surviving Corporation at such address.
3.3 Agreement
Copies of this Agreement will be on file at the principal place
of business of the Surviving Corporation at 000 Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, and copies thereof will be furnished to any stockholder of
either Constituent Corporation, upon request and without cost.
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