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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of October 9, 1998 (the "Merger
Agreement") by and between Cybernet Internet Services International, Inc., a
Utah corporation ("Cybernet Utah"), and Cybernet Internet Services
International, Inc., a Delaware corporation ("Cybernet Delaware"). Cybernet Utah
and Cybernet Delaware are hereinafter sometimes collectively referred to as the
"Constituent Corporations."
WHEREAS, the Board of Directors of each of Cybernet Utah and Cybernet
Delaware has approved the merger of Cybernet Utah with and into Cybernet
Delaware, with Cybernet Delaware being the surviving corporation (the "Merger")
pursuant to the terms and subject to the conditions of this Merger Agreement
whereby (i) each of the issued and outstanding shares of common stock, $.001 par
value per share, of the Cybernet Utah ("Cybernet Utah Common Shares") will be
converted into the right to receive the Merger Consideration set forth in
Section 5 hereof, and (ii) Cybernet Delaware will be the surviving corporation;
and
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a statutory merger under the provisions of Section
368(a)(1)(A) of the Internal Revenue Code, as amended (the "Code").
NOW THEREFORE, the parties agree as follows:
THE MERGER
Section 1. The Merger. Upon the terms and subject to the conditions
hereof, at the Effective Time (as hereinafter defined), Cybernet Utah shall be
merged with and into Cybernet Delaware in accordance with Section 252 of the
General Corporation Law of Delaware and the separate existence of Cybernet Utah
shall thereupon cease, and Cybernet Delaware, as the surviving corporation in
the Merger (the "Surviving Corporation"), shall continue its existence under the
laws of the State of Delaware under the name "Cybernet Internet Services
International, Inc."
Section 2. Certificate of Incorporation. The Certificate of
Incorporation of Cybernet Delaware as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation, until such Certificate of Incorporation is further changed or
amended as provided therein or by law.
Section 3. Bylaws. The Bylaws of Cybernet Delaware as in effect
immediately prior to the Effective Time shall be the Bylaws of the Surviving
Corporation until thereafter changed or amended as provided therein or as
otherwise permitted or required by law or by the Surviving Corporation's
Certificate of Incorporation.
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Section 4. Board of Director and Officers. The initial directors of the
Surviving Corporation shall be the directors of Cybernet Delaware holding office
immediately prior to the Effective Time and they shall serve until their
respective successors are duly elected or appointed and qualify in the manner
provided in the Certificate of Incorporation and By-Laws of the Surviving
Corporation or as otherwise provided by law. The officers of Cybernet Delaware
holding office immediately prior to the Effective Time shall be the officers of
the Surviving Corporation and they shall serve until their successors are duly
elected or appointed and qualify in the manner provided in the Certificate of
Incorporation and By-Laws of the Surviving Corporation or as otherwise provided
by law.
Section 5. Conversion of Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof:
a. Each then issued and outstanding share of Cybernet Utah
common stock, par value $.001, (the "Cybernet Utah Common Stock") shall be, by
virtue of the Merger, and without any action on the part of the holder thereof,
cancelled and converted solely into the right to receive, upon the surrender of
the certificate formerly representing such Cybernet Utah Common Stock, one (1)
share of the Surviving Corporation's common stock, par value $.001 (the
"Surviving Corporation Common Stock"); provided, however, that the total amount
of Surviving Corporation Common Stock that Xxxxxxx Xxxx is entitled to receive
shall be reduced by one thousand (1000) shares. When added to the number of
shares which Xx. Xxxx currently owns, the number of shares of the Surviving
Corporation which Xx. Xxxx will own is equal to the number of shares of the
Company which Xx. Xxxx owned before the Merger.
b. Each then issued and outstanding share of Cybernet Utah
Series A Preferred Stock, par value $.001 (the "Cybernet Utah Series A Preferred
Stock"), shall be, by virtue of the Merger, and without any action on the part
of the holder thereof, cancelled and converted solely into the right to receive,
upon the surrender of the certificate formerly representing such Cybernet Utah
Series A Preferred Stock, one (1) share of the Surviving Corporation's Series A
Preferred Stock, par value $.001 (the "Surviving Corporation Series A Preferred
Stock"). The Surviving Corporation Series A Preferred Stock shall have the same
rights, powers, privileges, preferences, designations, qualifications,
limitations, restrictions and conditions attaching to the Cybernet Utah Series A
Preferred Stock immediately prior to the Effective Time.
c. Each then issued and outstanding share of Cybernet Utah
Series B Preferred Stock, par value $.001 (the "Cybernet Utah Series B Preferred
Stock"), shall be, by virtue of the Merger, and without any action on the part
of the holder thereof, cancelled and converted solely into the right to receive,
upon the surrender of the certificate formerly representing such Cybernet Utah
Series B Preferred Stock, one (1) share of the Surviving Corporation's Series B
Preferred Stock, par value $.001 (the "Surviving Corporation Series B Preferred
Stock"). The Surviving Corporation Series B Preferred Stock shall have the same
rights, powers, privileges, preferences, designations, qualifications,
limitations, restrictions and conditions attaching to the Cybernet Utah Series B
Preferred Stock immediately prior to the Effective Time.
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d. Each then issued and outstanding share of Cybernet Utah
Series C Preferred Stock, par value $.001 (the "Cybernet Utah Series C Preferred
Stock"), shall be, by virtue of the Merger, and without any action on the part
of the holder thereof, cancelled and converted solely into the right to receive,
upon the surrender of the certificate formerly representing such Cybernet Utah
Series C Preferred Stock, one (1) share of the Surviving Corporation's Series C
Preferred Stock, par value $.001 (the "Surviving Corporation Series C Preferred
Stock"). The Surviving Corporation Series C Preferred Stock shall have the same
rights, powers, privileges, preferences, designations, qualifications,
limitations, restrictions and conditions attaching to the Cybernet Utah Series C
Preferred Stock immediately prior to the Effective Time.
e. The shares of Surviving Corporation Common Stock, Surviving
Corporation Series A Preferred Stock, Surviving Corporation Series B Preferred
Stock, and Surviving Corporation Series C Preferred Stock to be issued in the
Merger in exchange for certificates that immediately prior to the Effective Time
represented Cybernet Utah Common Stock, Cybernet Utah Series A Preferred Stock,
Cybernet Utah Series B Preferred Stock, and Cybernet Utah Series C Preferred
Stock are referred to herein as the "Merger Consideration."
Section 6. Effective Time of Merger. Cybernet Utah will be merged with
and into Cybernet Delaware, effective at the later of the date when the required
Articles of Merger are filed with the secretary of State of Utah or the date
when a Certificate of Merger is filed with the Secretary of State of the State
of Delaware (the "Effective Time").
Section 7. Certain Rights. Upon the Merger becoming effective, all the
property, rights, privileges, franchises, patents, trademarks, licenses,
registrations, and other assets of every kind and description of Cybernet Utah
shall be transferred to and vested in the Surviving Corporation without further
act or deed and all property, rights, and every other interest of Cybernet Utah
shall be as effectively the property rights and interests of the Surviving
Corporation as they were of Cybernet Utah. Cybernet Utah hereby agrees from time
to time, as and when requested by the Surviving Corporation or by its successors
or assigns, to execute and deliver or cause to be executed and delivered all
such deeds and instruments and to take or cause to be taken such further or
other action as the Surviving Corporation may deem necessary or desirable in
order to vest in and confirm to the Surviving Corporation title to and
possession of any property rights and interests of Cybernet Utah acquired or to
be acquired by reason of or as a result of the Merger herein provided for and
otherwise to carry out the intent and purposes hereof and the proper officers
and directors of the Surviving Corporation are fully authorized in the name of
Cybernet Utah or otherwise to take any and all such action.
Section 8. Representations and Warranties of Cybernet Utah. Cybernet
Utah represents and warrants to Cybernet Delaware as follows:
a. Organization and Good Standing. Cybernet Utah is a duly
incorporated and validly existing corporation in good standing under the laws of
the state of Utah, with all requisite corporate power and authority to own its
properties and conduct its business, and is duly qualified and in good standing
as a foreign corporation authorized to do business in each of the
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jurisdictions in which the character of the properties owned or leased by its or
the nature of the business transacted by it makes such qualification necessary,
except where the failure to be so qualified would not in the aggregate have a
material adverse effect on the business, assets, properties, financial condition
or results of operation of Cybernet Utah and its subsidiaries taken as a whole
(in respect of Cybernet Utah and its subsidiaries taken as a whole, as the case
may be, a "Material Adverse Effect"). Cybernet Utah has heretofore delivered to
Cybernet Delaware true and correct copies of its articles of incorporation and
bylaws as currently in effect.
b. Authorization; Binding Agreement. Cybernet Utah has all
requisite corporate power and authority to execute and deliver this Merger
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Merger Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by Cybernet Utah's
Board of Directors, no other corporate proceedings on the part of Cybernet Utah
are necessary to authorize this Merger Agreement and the transactions
contemplated hereby. This Merger Agreement has been duly and validly executed
and delivered by Cybernet Utah, and constitutes a legal, valid and binding
agreement of Cybernet Utah, enforceable against Cybernet Utah in accordance with
its terms (except as enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting creditors' rights generally or by the
principles governing the availability of equitable remedies).
c. Capitalization. As of the date hereof, the authorized capital
stock of Cybernet Utah consists of 50,000,000 shares of capital stock, of which
40,000,000 shares are common stock and 10,000,000 shares are preferred stock. As
of the date hereof, 16,868,171 shares of Cybernet Utah Common Stock, 1,200,000
shares of Cybernet Utah Series A Preferred Stock, 5,160,000 shares of Cybernet
Utah Series B Preferred Stock, and 7,960 shares of Cybernet Utah Series C
Preferred Stock are issued and outstanding, all of which are validly issued,
fully paid and nonassessable. There is not now, and at the Effective Time there
will not be, any existing option, warrant, subscription or other rights,
agreement or commitment to which Cybernet Utah is a party which either obligates
Cybernet Utah or any of its subsidiaries to issue, sell or transfer any shares
of its capital stock or restricts the transfer of or otherwise relates to the
capital stock of Cybernet Utah or any of its subsidiaries, except as such rights
may attach to the Cybernet Utah Series A Preferred Stock, the Cybernet Utah
Series B Preferred Stock, or the Cybernet Utah Series C Preferred Stock.
d. Financial Statements. Cybernet Utah has delivered to Cybernet
Delaware true and complete copies of its balance sheet as of June 30, 1998 (the
"Financial Statement"). As of its date, the Financial Statement did not contain
any untrue statement of a material fact or omit to state a fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The Financial Statement presents fairly the financial
position and results of operations of Cybernet Utah as of the dates and for the
periods indicated subject to normal year-end adjustments. Since the date of such
Financial Statement, there has been no event which would have a Material Adverse
Effect.
e. Litigation. As of the date hereof there are no claims,
actions, proceedings or investigations pending or, to the best knowledge of
Cybernet Utah, threatened, involving or
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affecting Cybernet Utah or any of its properties or assets or, to the best of
Cybernet Utah's knowledge, any employee, consultant, director or officer in his
or her capacity as such, of Cybernet Utah or any of its subsidiaries before any
court or governmental or regulatory authority of body which, if adversely
decided, could have a Material Adverse Effect. As of the date hereof, neither
Cybernet Utah nor any of its property or assets is subject to any order,
judgment, injunction or decree that singly or in the aggregate has a Material
Adverse Effect.
f. Governmental Approvals and Compliance with Law. No consent,
license, approval, qualification or form of exemption from or authorization of
or declaration, registration or filing with any government entity on the part of
Cybernet Utah which has not been made is required in connection with the
execution or delivery by Cybernet Utah of this Merger Agreement, the
consummation by Cybernet Utah of the transactions contemplated hereby or the
performance by Cybernet Utah of its obligations hereunder other than the filing
of Articles of Merger with the Secretary of State of Utah and the filing of a
Certificate of Merger with the Secretary of State of Delaware.
g. Absence of Breach. The execution and delivery by Cybernet
Utah of this Merger Agreement, the consummation of the transactions contemplated
hereby and the performance by Cybernet Utah of its obligations hereunder, will
not (a) subject to obtaining the required approval of Cybernet Utah's
shareholders, conflict with or result in a breach of any of the provisions of
its Certificate of Incorporation or bylaws, (b) contravene any law, rule or
regulation of any state or of the United States or any political subdivision
thereof or therein, or any order, writ, judgment, injunction, decree,
determination or award currently in effect, or (c) require any consent, approval
or notice under or result in a violation or breach of or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation, or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
agreement or other instrument to which Cybernet Utah or any of its subsidiaries
is a party or by which any of their assets are bound, the failure of which to
obtain, in each such case, would have a Material Adverse Effect.
Section 9. Representations and Warranties of Cybernet Delaware.
Cybernet Delaware represents and warrants to Cybernet Utah as follows:
a. Organization and Good Standing. Cybernet Delaware is a duly
incorporated and validly existing corporation in good standing under the laws of
the state of Delaware, with all requisite corporate power and authority to own
its properties and conduct its business, and is duly qualified and in good
standing as a foreign corporation authorized to do business in each of the
jurisdictions in which the character of the properties owned or leased by its or
the nature of the business transacted by it makes such qualification necessary,
except where the failure to be so qualified would not in the aggregate have a
material adverse effect on the business, assets, properties, financial condition
or results of operation of Cybernet Delaware and its subsidiaries taken as a
whole (in respect of Cybernet Delaware and its subsidiaries taken as a whole, as
the case may be, a "Material Adverse Effect"). Cybernet Delaware has heretofore
delivered to Cybernet Utah true and correct copies of its articles of
incorporation and bylaws as currently in effect.
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b. Authorization; Binding Agreement. Cybernet Delaware has all
requisite corporate power and authority to execute and deliver this Merger
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Merger Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by Cybernet Delaware's
Board of Directors, no other corporate proceedings on the part of Cybernet
Delaware are necessary to authorize this Merger Agreement and the transactions
contemplated hereby. This Merger Agreement has been duly and validly executed
and delivered by Cybernet Delaware, and constitutes a legal, valid and binding
agreement of Cybernet Delaware, enforceable against Cybernet Delaware in
accordance with its terms (except as enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting creditors'
rights generally or by the principles governing the availability of equitable
remedies).
c. Capitalization. As of the date hereof, the authorized capital
stock of Cybernet Delaware consists of 100,000,000 shares of capital stock, of
which 50,000,000 shares are common stock and 50,000,000 shares are preferred
stock. As of the date hereof, 1,000 shares of Cybernet Delaware Common Stock, no
shares of Cybernet Delaware Series A Preferred Stock, no shares of Cybernet
Delaware Series B Preferred Stock, and no shares of Cybernet Delaware Series C
Preferred Stock are issued and outstanding, all of which are validly issued,
fully paid and nonassessable. There is not now, and at the Effective Time there
will not be, any existing option, warrant, subscription or other rights,
agreement or commitment to which Cybernet Delaware is a party which either
obligates Cybernet Delaware or any of its subsidiaries to issue, sell or
transfer any shares of its capital stock or restricts the transfer of or
otherwise relates to the capital stock of Cybernet Delaware or any of its
subsidiaries, except as such rights may attach to the Cybernet Delaware Series A
Preferred Stock, the Cybernet Delaware Series B Preferred Stock, and the
Cybernet Delaware Series C Preferred Stock.
d. Litigation. As of the date hereof there are no claims,
actions, proceedings or investigations pending or, to the best knowledge of
Cybernet Delaware, threatened, involving or affecting Cybernet Delaware or any
of its properties or assets or, to the best of Cybernet Delaware's knowledge,
any employee, consultant, director or officer in his or her capacity as such, of
Cybernet Delaware or any of its subsidiaries before any court or governmental or
regulatory authority of body which, if adversely decided, could have a Material
Adverse Effect. As of the date hereof, neither Cybernet Delaware nor any of its
property or assets is subject to any order, judgment, injunction or decree that
singly or in the aggregate has a Material Adverse Effect.
e. Governmental Approvals and Compliance with Law. No consent,
license, approval, qualification or form of exemption from or authorization of
or declaration, registration or filing with any government entity on the part of
Cybernet Delaware which has not been made is required in connection with the
execution or delivery by Cybernet Delaware of this Merger Agreement, the
consummation by Cybernet Delaware of the transactions contemplated hereby or the
performance by Cybernet Delaware of its obligations hereunder other than the
filing of
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Articles of Merger with the Secretary of State of Utah and the filing of a
Certificate of Merger with the Secretary of State of Delaware.
f. Absence of Breach. The execution and delivery by Cybernet
Delaware of this Merger Agreement, the consummation of the transactions
contemplated hereby and the performance by Cybernet Delaware of its obligations
hereunder, will not (a) subject to obtaining the required approval of Cybernet
Delaware's shareholders, conflict with or result in a breach of any of the
provisions of its Certificate of Incorporation or bylaws, (b) contravene any
law, rule or regulation of any state or of the United States or any political
subdivision thereof or therein, or any order, writ, judgment, injunction,
decree, determination or award currently in effect, or (c) require any consent,
approval or notice under or result in a violation or breach of or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation, or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
agreement or other instrument to which Cybernet Delaware or any of its
subsidiaries is a party or by which any of their assets are bound, the failure
of which to obtain, in each such case, would have a Material Adverse Effect.
Section 10. Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Merger Agreement may be terminated and abandoned by the
Board of Directors of any Constituent Corporation at any time prior to the
Effective Time. This Merger Agreement may be amended by the Boards of Directors
of the Constituent Corporations at any time prior to Effective Time, provided
that an amendment made subsequent to the adoption of this Merger Agreement by
the stockholders of any Constituent Corporation shall not without approval of
the affected stockholders: (i) alter or change the amount or kind of shares,
obligations, cash, property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
Constituent Corporation, (ii) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger, or
(iii) alter or change any of the terms and conditions of this Merger Agreement
if such alteration or change would adversely affect the holders of any class or
series of shares of such Constituent Corporation.
Section 11. Miscellaneous.
a. Governing Law. This Merger Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, regardless
of the laws that might otherwise govern under the applicable principles of
conflicts of law of the State of Delaware.
b. Headings. Headings included herein are for convenience only
and shall not be used to interpret or construe this Merger Agreement.
c. Entire Agreement; Amendment. This Merger Agreement
constitutes the entire and exclusive agreement between the parties relating to
the subject matter hereof, and all other prior negotiations, representations,
understandings and agreements are expressly superseded hereby. No agreements
amending or supplementing the terms hereof shall be effective except by means of
a written document signed by the duly authorized representatives of both
parties.
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d. Counterparts; Facsimile Signature. This Merger Agreement
may be executed by facsimile and in one or more counterparts, each of which
shall be deemed an original.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties to this Merger Agreement, pursuant to
the approval and authority duly given by resolution adopted by their respective
Boards of Directors, have caused these presents to be executed by the duly
authorized officers of each party hereto as the respective act, deed and
agreement of each of said corporations, as of the date first referenced above.
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.,
a Utah corporation
By: /s/ XXXXXXX XXXX
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Xxxxxxx Xxxx
President
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ XXXXXXX XXXX
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Xxxxxxx Xxxx
President
