EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
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January __, 1997, is between Global Shopping Network, Inc., a Delaware
corporation ("GSN") and Global Broadcasting Systems, Inc., a Delaware
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corporation (the "Company").
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RECITALS
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WHEREAS, the respective Boards of Directors of GSN and the Company
each have determined that it is in the best interests of their respective
stockholders to effect the merger of GSN with and into the Company upon the
terms and subject to the conditions set forth herein (the "Merger"), in
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accordance with the General Corporation Law of the State of Delaware (the
"DGCL");
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NOW, THEREFORE, in consideration of the premises and the mutual
agreements and conditions contained herein, and for other good and valuable
consideration the receipt and adequacy of which is hereby acknowledged, GSN and
the Company hereby agree as follows:
ARTICLE I
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THE MERGER
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1.1 The Merger. At the Effective Time (as defined in Section 1.3
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hereof), in accordance with the DGCL, as a result of the Merger, the separate
existence of GSN shall cease, and the Company shall continue as the surviving
corporation (the "Surviving Corporation"). The Company and GSN are sometimes
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referred to herein as the "Constituent Corporations."
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1.2 Effect of the Merger. From and after the Effective Time, the
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Merger shall have all the effects provided by applicable law.
1.3 Consummation of the Merger. As soon as practicable on the
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Closing Date (as defined in Section 1.6 hereof), the parties hereto will cause a
certificate of merger with respect to the Merger (the "Certificate of Merger")
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to be executed and filed with the Secretary of State of the State of Delaware
in accordance with the DGCL and take all such further actions as may be required
by law to make the Merger effective. The Merger shall become effective at the
time of day on the date that the Merger Certificate is filed with the Secretary
of State of the State of Delaware in accordance with the DGCL, or at such later
time as may be agreed by the Company and GSN and specified in the Certificate of
Merger in accordance with applicable law. The date and time when the Merger
shall become effective is referred to herein as the "Effective Time".
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1.4 Certificate of Incorporation; Bylaws; Directors and Officers.
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(a) The Certificate of Incorporation of the Company in effect
immediately prior to the Effective Time shall be the Certificate of
Incorporation of the Surviving Corporation and shall thereafter continue in
full force and effect until thereafter amended as provided therein and by
applicable law.
(b) The Bylaws of the Company in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation and shall
thereafter continue in full force and effect until thereafter amended as
provided therein, by the Certificate of Incorporation and by applicable
law.
(c) The directors and officers of the Company immediately prior to
the Effective Time shall be the initial directors and officers, respectively, of
the Surviving Corporation until their successors have been duly elected or
appointed or until their earlier death, resignation or removal in accordance
with the Certificate of Incorporation and Bylaws of the Surviving Corporation.
1.5 Conditions. The respective obligations of the Company and GSN to
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consummate the Merger are subject to the receipt of all necessary approvals, if
any, by the stockholders of the Company and GSN in accordance with applicable
law and their respective Certificates of Incorporation and Bylaws.
1.6 Closing. The closing of the Merger shall take place at the
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offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000 at 10:00 a.m. Eastern time on the first business day on which the
conditions set forth in Section 1.5 hereof are fulfilled or at such other date
and time as the Company and GSN may agree. Such date and time being referred to
herein as the "Closing Date."
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ARTICLE II
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CONVERSION AND EXCHANGE OF CERTIFICATES
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2.1 Conversion of Securities. At the Effective Time, by virtue of
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the Merger and without any action on the part of GSN, the Company, the Surviving
Corporation or the holders of any of the following securities:
(a) Each share of Class A Common Stock, par value $.01 per share (the
"Class A Shares"), of GSN (including fractional shares, if any) issued and
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outstanding immediately prior to the Effective Time (other than any (i)
Class A Shares held by the Company and (ii) any Dissenting Shares (as
defined in Section 2.2 hereof)) shall be converted into and become .153
validly issued, fully paid and nonassessable shares (or equivalent
fractional shares) of Class B Common Stock, par value $.01 per share, of
the Surviving Corporation (the "Surviving Corporation Class B Common
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Stock"). Fractional shares of the Surviving Corporation Class B Common
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Stock issued pursuant to this Section 2.1(a) shall be rounded to the
nearest one-one thousandth (.001) of a share of Surviving Corporation Class
B Common Stock.
(b) Each share of Class B Common Stock, par value $.01 per share (the
"Class B Shares"), of GSN (including fractional shares, if any) issued and
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outstanding immediately prior to the Effective Time (other than (i) Class B
Shares held by the Company and (ii) any Dissenting Shares) shall be
converted into and become .153 validly issued, fully paid and nonassessable
shares (or equivalent fractional shares) of Class A Common Stock, par value
$.01 per share, of the Surviving Corporation (the "Surviving Corporation
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Class A Common Stock"). Fractional shares of the Surviving Corporation
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Class A Common Stock issued pursuant to this Section 2.1(b) shall be
rounded to the nearest one-one thousandth (.001) of a share of Surviving
Corporation Class A Common Stock.
(c) As of the Effective Time, all Class A Shares and all Class B
Shares shall cease to be outstanding and shall automatically be cancelled
and retired and shall cease to exist, and each holder of a certificate
representing any Class A Share or Class B Share shall cease to have any
rights with respect thereto, except to receive the Surviving Corporation
Class B Common
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Stock and/or the Surviving Corporation Class A Common Stock pursuant
to Section 2.1 hereof and the rights provided for in Section 2.2 hereof.
(d) Each Class A Share and Class B Share owned by or held in the
treasury of GSN immediately prior to the Effective Time shall cease to be
outstanding and shall automatically be cancelled and retired without
payment of any consideration therefor and cease to exist.
2.2 Dissenting Shares. Notwithstanding anything in this Agreement to
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the contrary, holders (collectively, "Dissenting Shareholders") of (a) Class A
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Shares (collectively, "Class A Dissenting Shares") issued and outstanding
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immediately prior to the Effective Time who have (i) neither voted in favor of
the Merger nor consented thereto in writing, (ii) delivered a written demand for
appraisal of such Class A Dissenting Shares in the manner provided in the DGCL
and (iii) as of the Effective Time, not effectively withdrawn or lost such right
to appraisal and (b) Class B Shares (collectively, "Class B Dissenting Shares",
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and together with Class A Dissenting Shares, "Dissenting Shares") issued and
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outstanding immediately prior to the Effective Time who have (i) delivered a
written demand for appraisal of such Class B Dissenting Shares in the manner
provided in DGCL and (ii) as of the Effective Time, not effectively withdrawn or
lost such right to appraisal, in each case, shall be entitled only to such
rights as are granted by Section 262 of the DGCL and shall not be entitled to
receive the Surviving Corporation Class B Common Stock and/or the Surviving
Corporation Class A Common Stock pursuant to Section 2.1 hereof. Each Dissenting
Shareholder who becomes entitled to payment for Dissenting Shares pursuant to
Section 262 of the DGCL shall receive payment therefor from the Surviving
Corporation in accordance with the DGCL; provided, however, that (i) if any such
Dissenting Shareholder shall have failed to establish his or her entitlement to
appraisal rights as provided in Section 262 of the DGCL, (ii) if any such
Dissenting Shareholder shall have effectively withdrawn his or her demand for
appraisal of his or her Dissenting Shares or lost his or her right to appraisal
and payment of his or her Dissenting Shares under Section 262 of the DGCL or
(iii) if neither any Dissenting Shareholder nor the Surviving Corporation shall
have filed a petition demanding a determination of the value of all Dissenting
Shares within the time provided in Section 262 of the DGCL, such Dissenting
Shareholder or Shareholders shall forfeit the right to appraisal of his or her
Dissenting Shares, and each such Dissenting Share shall thereupon be deemed to
have been converted, as of the Effective Time, into and represent the right to
receive from the Surviving Corporation, the Surviving Corporation Class B Common
Stock and/or the Surviving Corporation Class A Common Stock pursuant to Section
2.1 hereof.
2.3 Exchange of Certificates. From and after the Effective Time, the
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Surviving Corporation shall act as exchange agent in effecting the exchange of
the Class A Shares for the Surviving Corporation Class B Common Stock and Class
B Shares for the Surviving Corporation Class A Common Stock.
2.4 Stock Transfer Books. From and after the Effective Time, the
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stock transfer books of GSN shall be closed, and there shall be no further
registration of transfers of Class A Shares or Class B Shares on the books and
records of GSN or the Surviving Corporation. If, after the Effective Time (a)
certificates representing Class A Shares are presented to the Surviving
Corporation, they shall be cancelled and exchanged for the Surviving Corporation
Class B Common Stock, subject to applicable law in the case of Dissenting Shares
and (b) certificates representing Class B Shares are presented to the
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Surviving Corporation, they shall be cancelled and exchanged for the Surviving
Corporation Class A Common Stock, subject to applicable law in the case of
Dissenting Shares.
ARTICLE III
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MISCELLANEOUS
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3.1 Termination. This Agreement may be terminated at any time prior
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to the Effective Time, whether prior to or after the receipt of any stockholder
approvals, by mutual written consent of the Boards of Directors of the
Constituent Corporations.
3.2 Effect of Termination. In the event of the termination of this
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Agreement as provided in Section 3.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of the Company or GSN
or any of their respective directors or officers.
3.3 Amendment. This Agreement may not be amended except by action of
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the Board of Directors of each of the parties hereto which Amendment is set
forth in an instrument in writing signed on behalf of each of the parties
hereto; provided, however, that if an approval of the Merger by the
stockholders of either the Company and/or GSN is required by applicable law and
such approval is received by the Company and/or GSN, as the case may be, no
amendment may be made without the further approval by the applicable
stockholders if such amendment would require such approval under applicable law.
3.4 Waiver. At any time prior to the Effective Time, whether before
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or after the approval of the stockholders of the Constituent Corporations, any
of the provisions of this Agreement may be waived, subject to the proviso
contained in Section 3.3, by action taken by the Board of Directors of the party
which is, or whose stockholders are, entitled to the benefits thereof. Any
agreement on the part of a party hereto to any such waiver shall be valid only
if set forth in an instrument in writing signed on behalf of such party by a
duly authorized officer.
3.5 Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, provided, however, that no party hereto shall
assign any of its rights, interests or obligations hereunder without the prior
written consent of the other party.
3.6 Headings. The Article and Section headings herein are for
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convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
3.7 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be an original, but all of which together shall constitute
one and the same agreement.
3.8 Miscellaneous.
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(a) This Agreement constitutes the entire agreement and supersedes
all other prior agreements and undertakings, both written and oral, between
the parties, with respect to the subject matter hereof.
(b) This Agreement is not intended to confer upon any person other
than a party hereto any rights or remedies hereunder.
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(c) This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of New York,
without giving effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, GSN and the Company have caused this Agreement to be
executed as of the date first written above by their duly authorized respective
officers.
GLOBAL SHOPPING NETWORK, INC.
By:________________________________
Name:
Title:
GlOBAL BROADCAST SYSTEMS, INC.
By:________________________________
Name:
Title:
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