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EXHIBIT 4.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of August 31,
2001 (the "Execution Date"), by and among PLUS SOLUTIONS, INC., a Nevada
corporation ("Plus Solutions"), PLSO ACQUISITION, INC., a Delaware corporation
and wholly-owned subsidiary of Plus Solutions ("PLSO Acquisition"), and APPLIED
TECHNOLOGY SOLUTIONS INTEGRATORS, INC., a Delaware corporation ("ATSI").
WHEREAS, the respective Boards of Directors of Plus Solutions, PLSO
Acquisition and ATSI have approved the merger of PLSO Acquisition into ATSI
pursuant to the terms and conditions hereinafter set forth (the "Merger"); and
WHEREAS, the parties desire to make certain representation, warranties
and agreements in connection with the Merger and also to prescribe various
conditions to the Merger.
NOW, THEREFORE, in consideration of the foregoing recitals, which shall
be considered an integral part of this Agreement, and the covenants, conditions,
representations and warranties hereinafter set forth, the parties hereby agree
as follows:
ARTICLE I
THE MERGER
1.1 THE TRANSACTION. At the Effective Time (as hereinafter defined),
PLSO Acquisition shall be merged with and into ATSI (PLSO Acquisition and ATSI
are referred to as the "Constituent Corporations"), the separate existence of
PLSO Acquisition shall cease and ATSI shall continue as the surviving
corporation under the corporate name "Applied Technology Solutions Integrators,
Inc." (the "Surviving Corporation"), all upon the terms and subject to the
conditions provided for in this Agreement and pursuant to the Delaware General
Corporation Law (the "Delaware Act").
1.2 CLOSING AND EFFECTIVE TIME. Subject to the provisions of this
Agreement, the parties shall hold a closing (the "Closing") on (a) the first
business day after the Execution Date or (b) such other date as the parties
hereto may agree (the "Closing Date"), at such time and place as the parties
hereto may agree. The Merger shall become effective upon the filing of Articles
of Merger with the Secretary of State of Delaware at such later time as is
provided in the Articles of Merger (the "Effective Time"). As a result of the
Merger, ATSI shall become a wholly owned subsidiary of Plus Solutions.
1.3 EFFECTS OF THE MERGER. The Merger shall have the effects specified
in the Delaware Act and, at and after the Effective Time, the Surviving
Corporation shall possess all of the rights, privileges, powers and franchises,
and be subject to all of the restrictions, disabilities and duties of each of
the Constituent Corporations; and all singular rights, privileges, powers and
franchises of each of the Constituent Corporations, and all property, real,
personal and mixed, and all debts due to either of the Constituent Corporations
on whatever account, and all other things in action or belonging to each of the
Constituent Corporations, shall be vested in the
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Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall thereafter become the
property of the Surviving Corporation as they were of the Constituent
Corporations; but all rights of creditors and all liens upon any property of
either of the Constituent Corporations shall be preserved unimpaired, and all
debts, liabilities and duties of the Constituent Corporations shall thenceforth
attach to the Surviving Corporation, and may be enforced against it to the same
extent as if said debts and liabilities had been incurred by it.
1.4 CERTIFICATE OF INCORPORATION, BYLAWS, DIRECTORS AND OFFICERS. The
Certificate of Incorporation of the Surviving Corporation in effect immediately
prior to the Effective Time, shall be and remain the Certificate of
Incorporation of the Surviving Corporation, until thereafter amended in
accordance with the provisions therein and as provided by the Delaware Act.
Similarly, the Bylaws of the Surviving Corporation in effect immediately prior
to the Effective Time shall be the Bylaws of the Surviving Corporation until
thereafter amended in accordance with its terms. Finally, the directors and
officers of the Surviving Corporation shall be the directors and officers of the
Surviving Corporation at the Effective Time, until their successors are duly
elected and qualified.
1.5 CONVERSION AND CANCELLATION OF SHARES IN THE MERGER. As of the
Effective Time, by virtue of the Merger and without any action on the part of
Plus Solutions, PLSO Acquisition, ATSI or the holder of any shares of PLSO
Acquisition or ATSI, the following shall occur:
(a) CAPITAL STOCK OF PLSO ACQUISITION. Each issued and
outstanding share of the capital stock of PLSO Acquisition shall be
converted into and become one fully paid and nonassessable share of
Common Stock, no par value per share, of the Surviving Corporation.
(b) CAPITAL STOCK OF ATSI. Each issued and outstanding share
of the capital stock of ATSI shall be converted into the right to
receive 0.10 share (the "Merger Shares") of Series B Preferred stock,
par value $.001 per share, of Plus Solutions (the "Series B Preferred
Stock") with the result that after the Effective Time, ATSI will become
a wholly owned subsidiary of Plus Solutions. All such converted shares
of ATSI will no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist, and each holder of a
certificate representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the Merger Shares.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF PLUS SOLUTIONS AND PLSO
ACQUISITION. Plus Solutions and PLSO Acquisition jointly and severally represent
and warrant to ATSI as follows:
(a) ORGANIZATION, STANDING AND POWER.
(i) Plus Solutions is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Nevada, has all requisite power and authority to own,
lease and operate its properties and to carry on its business
as now being conducted, and is duly qualified and in good
standing to do business in each jurisdiction in which the
nature of its business or the ownership or leasing of its
properties makes such qualification necessary other than in
such jurisdictions where the failure so to qualify would not
have a material adverse affect on Plus Solutions and PLSO
Acquisition (together, the "Plus Solutions Entities") taken as
a whole.
(ii) The only subsidiary of Plus Solutions is PLSO
Acquisition. Plus Solutions does not own or hold securities or
debt obligations of any entity other than PLSO Acquisition.
All shares of capital stock or ownership interests of PLSO
Acquisition have been duly authorized, are fully paid and
nonassessable, and are lawfully owned of record and
beneficially by the owner thereof free and clear of all
pledges, liens, claims, security interests and other charges
or defects in title of any nature whatsoever.
(iii) PLSO Acquisition is duly organized, validly
existing, in good standing and qualified to do business in
each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such
qualification necessary other than in such jurisdictions where
the failure so to qualify would not have a material adverse
effect on the Plus Solutions Entities taken as a whole.
(b) CAPITAL STRUCTURE. The authorized capital stock of Plus
Solutions consists of 90,000,000 shares of Common Stock; par value of
$0.001 per share, of Plus Solutions (the "Common Stock) and 10,000,000
shares of preferred stock, par value $0.001 per share, of Plus
Solutions (the "Preferred Stock"). On the Execution Date, 39,635,000
shares of Common Stock were issued and outstanding. 100,000 shares of
Preferred Stock have been designated Series A Preferred Stock, of which
100,000 shares are issued and outstanding, and 1,100,000 shares of
Preferred Stock have been designated Series B Preferred Stock, of which
no shares are currently issued or outstanding. On the Execution Date,
no shares of Common Stock were held by Plus Solutions in its treasury.
All outstanding shares of Common Stock and Preferred Stock are, and the
Merger Shares to be issued will be validly issued, fully paid and
nonassessable and not subject to preemptive rights. All of the issued
and outstanding shares of Common Stock and Preferred Stock were issued
in compliance with all Federal and state securities laws.
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(c) CERTIFICATE OF INCORPORATION, BYLAWS, AND MINUTE BOOKS.
The copies of the Certificate of Incorporation, bylaws and other
organizational documents of Plus Solutions and each Plus Solutions
Entity which have been delivered to ATSI are true, correct and complete
copies thereof.
(d) AUTHORITY.
(i) Plus Solutions has all requisite power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of
Directors of Plus Solutions. No other corporate or shareholder
proceedings on the part of Plus Solutions are necessary to
authorize the Merger, or the other transactions contemplated
hereby.
(ii) This Agreement has been duly executed and
delivered by Plus Solutions and constitutes a valid and
binding obligation enforceable in accordance with its terms.
(e) CONFLICT WITH OTHER AGREEMENTS; APPROVALS. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not result in any violation of,
or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancellation or acceleration of
any obligation or the loss of a material benefit under, or the creation
of a lien, pledge, security interest or other encumbrance on assets
(any such conflict, violation, default, right of termination,
cancellation or acceleration, loss or creation, a "Violation") pursuant
to any provision of the Certificate of Incorporation, bylaws or any
organizational document of Plus Solutions or any Plus Solutions or,
result in any Violation of any loan or credit agreement, note,
mortgage, indenture, lease, benefit plan or other agreement,
obligation, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Plus Solutions or any Plus Solutions Entity or their
respective properties or assets which Violation would have a material
adverse effect on Plus Solutions and the Plus Solutions Entities taken
as a whole. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative
agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity") is
required by or with respect to Plus Solutions or any Plus Solutions
Entity in connection with the execution and delivery of this Agreement
by Plus Solutions or the consummation by Plus Solutions of the
transactions contemplated hereby, the failure to obtain which would
have a material adverse effect on Plus Solutions and the Plus Solutions
Entities, taken as a whole, except for (i) the filing of such documents
with, and the obtaining of such orders from, the Securities and
Exchange Commission (the "SEC"), the various state authorities,
including state securities authorities, that are required in connection
with the transactions contemplated by this Agreement; and (ii) the
filing of Articles of Merger with the Secretary of State of Delaware.
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2.2 REPRESENTATIONS AND WARRANTIES OF ATSI. ATSI represents and
warrants to Plus Solutions and PLSO Acquisition as follows:
(a) ORGANIZATION, STANDING AND POWER.
(i) ATSI is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, has all requisite power and authority to own, lease
and operate its properties and to carry on its business as now
being conducted, and is duly qualified and in good standing to
do business in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes
such qualification necessary other than in such jurisdictions
where the failure so to qualify would not have a material
adverse effect on ATSI taken as a whole.
(ii) ATSI has no subsidiaries. ATSI does not own or
hold securities or debt obligations of any entity.
(b) CAPITAL STRUCTURE. The authorized capital stock of ATSI
consists of 13,500,000 shares of common stock, par value $0.001 per
share (the "ATSI Common Stock"), 1,600 shares of Class A Preferred
Stock, par value $1.00 per share (the "ATSI Class A Preferred Stock"),
and 6,400 shares of Class AA Preferred Stock, par value $1.00 per share
(the "ATSI Class AA Preferred Stock" and, collectively with the ATSI
Class A Preferred Stock, the "ATSI Preferred Stock"). As of the
Execution Date, 7,727,102 shares of ATSI Common Stock were outstanding,
no shares of ATSI Common Stock were held by ATSI in treasury and no
shares of ATSI Preferred Stock were outstanding. All outstanding shares
of ATSI Common Stock are validly issued, fully paid and nonassessable
and not subject to preemptive rights or other restrictions on transfer.
All of the issued and outstanding shares of ATSI Common Stock were
issued in compliance with all Federal and state securities Laws. Other
than as set forth on Schedule 2.2(b), there are no options, warrants,
calls, agreements or other rights to purchase or otherwise acquire from
ATSI at any time, or upon the happening of any stated event, any shares
of the capital stock of ATSI, whether or not presently issued or
outstanding.
(c) CERTIFICATE OF INCORPORATION, BYLAWS AND MINUTE BOOKS. The
copies of the Articles of Incorporation, bylaws and other
organizational documents of ATSI which have been delivered to Plus
Solutions are true, correct and complete copies thereof. The minute
books of ATSI which have been made available for inspection contain
accurate minutes of all meetings and accurate consents in lieu of
meetings of the Board of Directors (and any committee thereof) and of
the shareholders of ATSI since the date of incorporation and accurately
reflect all transactions referred to in such minutes and consents in
lieu of meetings.
(d) AUTHORITY. ATSI has all requisite power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated
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hereby have been duly authorized by the Board of Directors of ATSI and
Shareholders of ATSI, and no other corporate or shareholder proceedings
on the part of ATSI are necessary to authorize the Merger and the other
transactions contemplated hereby. This Agreement has been duly executed
and delivered by ATSI and constitutes a valid and binding obligation of
ATSI enforceable in accordance with its terms.
(e) CONFLICT WITH AGREEMENTS; APPROVALS. The execution and
delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in
any Violation pursuant to any provision of the Articles of
Incorporation, bylaws or any organizational document of ATSI or result
in any Violation of any loan or credit agreement, note, mortgage,
indenture, lease, benefit plan or other agreement, obligation,
instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to ATSI
or its properties or assets, which Violation would have a material
adverse effect on ATSI taken as a whole. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to ATSI in
connection with the execution and delivery of this Agreement by ATSI or
the consummation by ATSI of the transactions contemplated hereby, the
failure to obtain which would have a material adverse effect on ATSI
taken as a whole except for the filing of Articles of Merger with the
Secretary of State of Delaware.
(f) FINANCIAL STATEMENTS. ATSI has furnished Plus Solutions
with unaudited balance sheets as of June 30, 2001, including a complete
schedule of accounts payable (the "Plus Financial Statements"). The
ATSI Financial Statements including the footnotes thereto, except as
indicated therein, have been prepared in accordance with generally
accepted accounting principles. The ATSI Financials Statements are
complete and correct in all material respects and fairly present in all
material respects the financial condition and results of the operations
of ATSI and show all material liabilities absolute or contingent of
ATSI.
(g) BOOKS AND RECORDS. ATSI has made and will make available
for inspection by Plus Solutions upon reasonable request all the books
of account, relating to the business of ATSI. Such books of account of
ATSI have been maintained in the ordinary course of business. All
documents furnished or caused to be furnished to Plus Solutions by ATSI
are true and correct copies, and there are no amendments or
modifications thereto except as set forth in such documents.
(h) COMPLIANCE WITH LAWS. ATSI is and has been in compliance
in all material respects with all laws, regulations, rules, orders,
judgments, decrees and other requirements and policies imposed by any
Governmental Entity applicable to it, its properties or the operation
of its businesses.
(i) LIABILITIES AND OBLIGATIONS. ATSI has no material
liabilities or obligations (absolute, accrued, contingent or otherwise)
except liabilities that are reflected and reserved against on the ATSI
Financial Statements.
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(j) LITIGATION. Except as set forth in Schedule 2.2(j), there
is no suit, action or proceeding pending, or, to the Knowledge of ATSI,
threatened against or affecting ATSI which is reasonably likely to have
a Material Adverse Effect on ATSI, nor is there any judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator
outstanding against ATSI having, or which, insofar as reasonably can be
foreseen, in the future could have, any such effect.
(k) TAXES. ATSI has filed or will file within the time
prescribed by law (including extension of time approved by the
appropriate taxing authority) all tax returns and reports required to
be filed with the United States Internal Revenue Service and with all
other jurisdictions where such filing is required by law; and ATSI has
paid, or has made adequate provision in the ATSI Financial Statements
for the payment of all taxes, interest, penalties, assessments or
deficiencies due and payable on, and with respect to all periods ending
prior to the Closing Date. ATSI knows of (i) no other tax returns or
reports which are required to be filed which have not been so filed and
(ii) no unpaid assessment for additional taxes for any fiscal period or
any basis therefore.
(l) LICENSES, PERMITS; INTELLECTUAL PROPERTY.
(i) ATSI owns or possesses in the operation of its
business all material Authorizations which are necessary for
them to conduct their business as now conducted. ATSI is not
in material default, and has not received any notice of any
claim of default, with respect to any such Authorization or
any notice of any other claim or proceeding or threatened
proceeding relating to any such Authorization or claimed lack
of any necessary Authorization. Neither the execution or
delivery of this Agreement nor the consummation of the
transactions contemplated hereby will require any notice or
consent under or have any material adverse effect upon any
such Authorization.
(ii) Set forth in Schedule 2.2(l) is a list of the
material domestic and foreign patents, patent applications,
patent licenses, software, corporate or other names, trade
names, trademarks, service marks, trademark registrations and
applications, service xxxx registrations and applications,
copyright registrations and applications licensed or owned by
ATSI (collectively the "Intellectual Property"). ATSI does not
license any Intellectual Property to third parties. ATSI owns
the entire right, title and interest in and to the
Intellectual Property and each item constituting part of the
Intellectual Property has been, to the extent indicated in
Schedule 2.2(l), duly registered with, filed in or issued by,
as the case may be, the United States Patent and Trademark
Office or such other government entity, domestic or foreign,
as is indicated in Schedule 2.2(l) and, to the knowledge of
ATSI, such registrations, filings and issuances remain in full
force and effect and there are no pending proceedings or
litigation or other adverse claims made in writing affecting
or with respect to the Intellectual Property.
(m) TRANSACTIONS AND AFFILIATES. Except as described in
Schedule 2.2(m), no director or officer of ATSI or any member of his or
her immediate family, is a party to
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any Contract or other business arrangement or relationship of any kind
with ATSI or, except for the ownership of not more than 1% of the stock
of a company having a class of securities registered pursuant to the
Exchange Act, has an ownership interest in any business, corporate or
otherwise, which is a party to, or in any property which is the subject
of, business arrangements or relationships of any kind with ATSI.
ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS
3.1 COVENANTS OF ATSI AND PLUS SOLUTIONS. During the period from the
date of this Agreement and continuing until the Effective Time, ATSI and Plus
Solutions each agree as to itself and its related entities and subsidiaries that
(except as expressly contemplated or permitted by this Agreement, or to the
extent that the other party shall otherwise consent in writing):
(a) ORDINARY COURSE. Each party and their respective
subsidiaries shall carry on their respective businesses in the Ordinary
Course of Business in substantially the same manner as heretofore
conducted.
(b) DIVIDENDS; CHANGES IN STOCK. No party shall, nor shall any
party permit any of its subsidiaries to, nor shall any party propose
to, (i) declare or pay any dividends on or make other distributions in
respect of any of its capital stock, (ii) split, combine or reclassify
any of its capital stock or issue or authorize or propose the issuance
of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock or (iii) repurchase or otherwise
acquire, or permit any subsidiary to purchase or otherwise acquire, any
shares of its capital stock.
(c) ISSUANCE OF SECURITIES. No party shall, nor shall any
party permit any of its subsidiaries to, issue, deliver or sell, or
authorize or propose the issuance, delivery or sale of, any shares of
its capital stock of any class, any voting debt or any securities
convertible into, or any rights, warrants or options to acquire, any
such shares, voting debt or convertible securities.
(d) GOVERNING DOCUMENTS. No party shall amend or propose to
amend its Certificate of Incorporation or bylaws.
(e) NO SOLICITATIONS. No party shall, nor shall any party
permit any of its related entities or subsidiaries to, nor shall it
authorize or permit any of its officers, directors or employees or any
investment banker, financial advisor, attorney, accountant or other
representative retained by it or any of its related entities or
subsidiaries to, solicit or encourage (including by way of furnishing
information), or take any other action to facilitate, any inquiries or
the making of any proposal which constitutes, or may reasonably be
expected to lead to, any takeover proposal, or agree to or endorse any
takeover proposal. Each party shall promptly advise the other orally
and in writing of any such inquiries or proposals. As used in this
Agreement, "takeover proposal" shall mean any tender or exchange offer,
proposal for a Merger, consolidation or other
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business combination involving a party hereto or any related entity or
subsidiary of such party or any proposal or offer to acquire in any
manner a substantial equity interest in, or a substantial portion of
the assets of, such party or related entity or any of its subsidiaries
other than the transactions contemplated by this Agreement.
(f) NO ACQUISITIONS. No party shall, nor shall any party
permit any of its related entities or subsidiaries to, acquire or agree
to acquire by merging or consolidating with, or by purchasing a
substantial equity interest in or a substantial portion of the assets
of, or by any other manner, any business or any corporation,
partnership, association or other business organization or division
thereof or otherwise acquire or agree to acquire any assets in each
case which are material, individually or in the aggregate, to such
party and related entities and its subsidiaries taken as a whole.
(g) NO DISPOSITIONS. Except for the transfer of assets in the
ordinary course of business consistent with prior practice, no party
shall, nor shall any party permit any of its related entities or
subsidiaries to, sell, lease, encumber or otherwise dispose of, or
agree to sell, lease, encumber or otherwise dispose of, any of its
assets, which are material, individually or in the aggregate, to such
party, its related entities and its subsidiaries taken as a whole.
(h) INDEBTEDNESS. No party shall, nor shall any party permit
any of its related entities or subsidiaries to, incur any indebtedness
for borrowed money or guarantee any such indebtedness or issue or sell
any debt securities or warrants or rights to acquire any debt
securities of such party or related entities or any of its subsidiaries
or guarantee any debt securities of others other than in each case in
the ordinary course of business consistent with prior practice.
(i) COMPENSATION. No party shall grant any increase in the
salary or other compensation of its officers or other employees or
grant any bonus to any officer or other employee or enter into any
employment agreement or make any loan to or enter into any material
transaction of any other nature with any officer or other employee of
such party.
(j) NO NEW SEVERANCE. No party shall take any action to
institute any new severance or termination pay practices with respect
to any directors or officers or other employees of such party or to
increase the benefits payable under its severance or termination pay
practices.
(k) BENEFIT PLANS. No party shall adopt or amend, in any
respect, except as may be required by applicable law or regulation, any
bonus, profit sharing, compensation, stock option, restricted stock,
pension, retirement, deferred compensation, employment or other
employee benefit plan, agreement, trust, fund, plan or arrangement for
the benefit or welfare of any directors or officers or other employees
except as otherwise contemplated by this Agreement.
3.2 OTHER ACTIONS. No party shall, nor shall any party permit any of
its related entities subsidiaries to, take any action that would or is
reasonably likely to result in any of its
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representations and warranties set forth in this Agreement being untrue as of
the date made (to the extent so limited), or in any of the conditions to the
Merger set forth in Article V not being satisfied.
3.3 ADVICE OF CHANGES. Each party shall confer on a regular and
frequent basis with the other, report on operational matters and promptly advise
the other orally and in writing of any change or event having, or which, insofar
as can reasonably be foreseen, could have, a Material Adverse Effect on such
party and its related entities and subsidiaries taken as a whole.
3.4 FILINGS. Each party hereto shall provide to each other party copies
of all filings intended to be made by such party with any Governmental Entity.
3.5 PRESS RELEASES. Neither Plus Solutions nor ATSI will make any press
release or other report to third parties regarding this Agreement or the matters
and transactions contemplated thereby, except (a) as required by applicable law
and, then, containing only such information as is required by such applicable
law; or (b) as is approved by both Plus Solutions and ATSI prior to
dissemination.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 RESTRICTED PLUS SOLUTIONS SHARES. The Merger Shares will not be
registered under the Securities Act, but will be issued pursuant to an exemption
from such registration requirements based upon representations and warranties
made by the shareholders of ATSI. Accordingly, the Merger Shares will constitute
"restricted securities" as defined in Rule 144 under the Securities Act and the
holders thereof will not be able to transfer such Merger Shares except upon
compliance with the registration requirements of the Securities Act and
applicable state securities laws or an exemption therefrom. The certificates
evidencing the Merger Shares shall contain a legend to the foregoing effect.
4.2 LEGAL CONDITIONS TO MERGER. Each of Plus Solutions and ATSI will
take all reasonable actions necessary to comply promptly with all legal
requirements which may be imposed on itself with respect to the Merger and will
promptly cooperate with and furnish information to each other in connection with
any such requirements imposed upon any of them or any of their related entities
or subsidiaries in connection with the Merger. Each party will, and will cause
its related entities or subsidiaries to, take all reasonable actions necessary
to obtain (and will cooperate with each other in obtaining) any consent,
authorization, order or approval of, or any exemption by, any Governmental
Entity or other public or private third party, required to be obtained or made
by Plus Solutions or ATSI or any of their related entities or subsidiaries in
connection with the Merger or the taking of any action contemplated thereby or
by this Agreement.
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4.3 PLUS SOLUTIONS BOARD OF DIRECTORS AND OFFICERS. All of the officers
and directors of Plus Solutions shall resign as of the Closing Date and the
following persons shall be appointed as officers and directors of Plus Solutions
as of such date:
Directors: Xxx Xxxxxx
Xxxxxxx Xxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxx
Officers: Xxxx Xxxxxxx, President and Chief Executive Officer
Xxxx Xxxxxx, Vice President
Xxxxxx Xxxxxxxxx, Secretary and Treasurer
4.4 EXPENSES. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligation of each party to effect the Merger shall be subject to the
receipt or filing, prior to the Closing Date, of all authorizations, consents,
orders or approvals of, or declarations or filings with, or expirations of
waiting periods imposed by, any Governmental Entity, the failure to obtain which
would have a Material Adverse Effect on ATSI or any Plus Solutions Entity, taken
as a whole, shall have been filed, occurred or been obtained.
5.2 CONDITIONS OF OBLIGATIONS OF PLUS SOLUTIONS. The obligations of
Plus Solutions and PLSO Acquisition to effect the Merger are subject to the
satisfaction of the following conditions on or before the Closing Date unless
waived by Plus Solutions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of ATSI set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and
(except to the extent such representations and warranties speak as of
an earlier date) as of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this Agreement, and
Plus Solutions shall have received a certificate signed on behalf of
ATSI by the President of ATSI to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF ATSI. ATSI shall have
performed in all material respects all obligations required to be
performed by it under this Agreement at or prior the Closing Date, and
Plus Solutions shall have received a certificate signed on behalf of
ATSI by the President to such effect.
(c) CLOSING DOCUMENTS. Plus Solutions shall have received such
certificates and other closing documents as counsel for Plus Solutions
shall reasonably request.
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(d) CONSENTS. ATSI shall have obtained the consent or approval
of each person whose consent or approval shall be required in
connection with the transactions contemplated hereby under any loan or
credit agreement, note, mortgage, indenture, lease or other agreement
or instrument, except those for which failure to obtain such consents
and approvals would not, in the reasonable opinion of Plus Solutions,
individually or in the aggregate, have a material adverse effect on
ATSI and its subsidiaries and related entities taken as a whole upon
the consummation of the transactions contemplated hereby.
(e) PENDING LITIGATION. There shall not be any litigation or
other proceeding pending or threatened to restrain or invalidate the
transactions contemplated by this Agreement, which, in the sole
reasonable judgment of Plus Solutions, made in good faith, would make
the consummation of the Merger imprudent. In addition, there shall not
be any other litigation or other proceeding pending or threatened
against ATSI, the consequences of which, in the judgment of Plus
Solutions, could be materially adverse to ATSI.
(f) SHAREHOLDER APPROVAL. ATSI shall have received the
approval of its shareholders regarding the Merger, and Plus Solutions
shall have received satisfactory evidence of such fact.
5.3 CONDITIONS OF OBLIGATIONS OF ATSI. The obligation of ATSI to effect
the Merger is subject to the satisfaction of the following conditions on or
before the Closing Date unless waived by ATSI:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Plus Solutions set forth in this Agreement shall be true
and correct in all material respects as of the date of this Agreement
and (except to the extent such representations speak as of an earlier
date) as of the Closing Date as though made on and as of the Closing
Date, except as otherwise contemplated by this Agreement, ATSI shall
have received a certificate signed on behalf of Plus Solutions by the
Chief Executive Officer to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF PLUS SOLUTIONS AND PLSO
ACQUISITION. Plus Solutions shall have performed in all material
respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date, and ATSI shall have received
a certificate signed on behalf of Plus Solutions the Chief Executive
Officer to such effect.
(c) CLOSING DOCUMENTS. ATSI shall have received such
certificates and other closing documents as counsel for ATSI shall
reasonably request.
(d) CONSENTS. Plus Solutions shall have obtained the consent
or approval of each person whose consent or approval shall be required
in connection with the transactions contemplated hereby under any loan
or credit agreement, note, mortgage,
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indenture, lease or other agreement or instrument, except those for
which failure to obtain such consents and approvals would not, in the
reasonable opinion of ATSI, individually or in the aggregate, have a
material adverse effect on Plus Solutions and its subsidiaries and
related entities, taken as a whole upon the consummation of the
transactions contemplated hereby.
(e) PENDING LITIGATION. There shall not be any litigation or
other proceeding pending or threatened to restrain or invalidate the
transactions contemplated by this Agreement, which, in the sole
reasonable judgment of ATSI, made in good faith, would make the
consummation of the Merger imprudent. In addition, there shall not be
any other litigation or other proceeding pending or threatened against
Plus Solutions or any Plus Solutions Entity, the consequences of which,
in the judgment of ATSI, could be materially adverse to Plus Solutions
or any Plus Solutions Entity.
ARTICLE VI
TERMINATION AND AMENDMENT
6.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time:
(a) by mutual consent of Plus Solutions and ATSI;
(b) by either Plus Solutions or ATSI if there has been a
material breach of any representation, warranty, covenant or agreement
on the part of the other set forth in this Agreement which breach has
not been cured within 5 business days following receipt by the
breaching party of notice of such breach, or if any permanent
injunction or other order of a court or other competent authority
preventing the consummation of the Merger shall have become final and
non-appealable; or
(c) by either Plus Solutions or ATSI if the Merger does not
become effective before September 15, 2001.
6.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either ATSI or Plus Solutions as provided in Section 6.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of any party hereto. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expenses.
6.3 AMENDMENT. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of Directors, provided no
amendment shall be made which by law requires approval by the shareholders of
any party without such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
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6.4 EXTENSION; WAIVER. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Board of
Directors, may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party.
ARTICLE VII
GENERAL PROVISIONS
7.1 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or mailed by registered or certified mail (return receipt requested)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) If to Plus Solutions, to
Plus Solutions, Inc.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx of America
Attn: Xxx Xxxxxx, President and Chief Executive
Officer
Facsimile No.: 000-000-0000
with a copy to
Xxxxxx Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx of America
Attn: Xxxx Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
(b) If to ATSI, to
Applied Technology Solutions Integrators, Inc.
00 Xxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: President
Facsimile No.: 000-000-0000
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with a copy to
Xxxxxx X. Xxxxxx
Xxxxxx and Zipern
00 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
7.2 INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation". The phrase "made available" in this Agreement shall mean that the
information referred to has been made available if requested by the party to
whom such information is to be made available.
7.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. This Agreement may be executed by
facsimile signature and the facsimile signature by any party shall constitute an
original in all respects.
7.4 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; RIGHTS OF
OWNERSHIP. This Agreement (including the documents and the instruments referred
to herein) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
7.5 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Texas without regard to principles of
conflicts of law. Each party hereby irrevocably submits to the jurisdiction of
any Texas state court located in Dallas County or the United States District
Courts in the Northern District of Texas in respect of any suit, action or
proceeding arising out of or relating to this Agreement.
7.6 PUBLICITY. Except as otherwise required by law, so long as this
Agreement is in effect, no party shall issue or cause the publication of any
press release or other public announcement with respect to the transactions
contemplated by this Agreement without the written consent of the other party,
which consent shall not be unreasonably withheld.
7.7 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties, except that Plus Solutions or ATSI may assign, in its sole discretion,
any or all of its rights, interests and obligations
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hereunder to any direct or indirect wholly owned subsidiary of such company.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Agreement has been signed by the parties set
forth below as of the date set forth above.
PLUS SOLUTIONS, INC.
By: /s/ XXX XXXXXX
--------------------------------------
President and Chief Executive Officer
PLSO ACQUISITION, INC.
By: /s/ XXX XXXXXX
--------------------------------------
President
APPLIED TECHNOLOGY SOLUTIONS INTEGRATORS,
INC.
By: /s/ XXXX XXXXXXX
--------------------------------------
President and Chief Executive Officer
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