EXHIBIT 2.1.5
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of January 22, 1999 (this
"Agreement") by and between Telecommunications Service Center, Inc., a Florida
corporation ("TSC") and CyberSentry, Inc., a Delaware corporation ("CyberSentry"
or the "Surviving Corporation", and together with TSC, the "Constituent
Corporations").
WHEREAS, the Boards of Directors of TSC and CyberSentry desire that
TSC merge with and into CyberSentry pursuant to the terms and conditions of this
Agreement and in accordance with Section 252 of the Delaware General Corporation
Law ("DGCL") and Section 607.1107 of the Florida Business Corporation Act (the
"FBCA"), and have adopted and approved this Agreement in accordance with Section
607.1107 of the FBCA and Section 252 of the DGCL, respectively; and
WHEREAS, the Constituent Corporations have agreed to merge pursuant
to and in accordance with the Second Amended Plan of Reorganization (the
"Plan"), dated December 4, 1998, submitted to the United States Bankruptcy Court
for the Middle District of Florida (the "Bankruptcy Court") in connection with
the pending case filed by TSC seeking reorganization under Chapter 11 of the
United States Bankruptcy Code; and
WHEREAS, the stockholders of TSC have adopted and approved this
Agreement in accordance with Sections 607.1107 and 607.1103 of the FBCA, and the
stockholders of CyberSentry have adopted and approved this Agreement in
accordance with Section 252 of the DGCL.
NOW, THEREFORE, in consideration of the premises and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
Section 1.1. The Merger. TSC shall merge with and into CyberSentry
(the "Merger"). CyberSentry shall be the surviving corporation in the Merger,
and at the Effective Time (as defined below), the separate existence of TSC
shall cease. The corporate existence of CyberSentry, with its purposes, powers
and objects, shall continue unaffected and unimpaired by the Merger, and as the
surviving corporation it shall succeed to all rights, assets, liabilities and
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obligations of TSC as and to the extent provided in Section 259 of the DGCL and
Sections 607.1106 and 607.11101 of the FBCA.
Section 1.2. The Effective Time. The Merger shall become effective
(the "Effective Time") upon the filing of (i) a certificate of merger executed
by CyberSentry with the Secretary of State of the State of Delaware pursuant to
Section 252 of the DGCL, the form of which is attached as Annex A and (ii)
articles of merger executed by TSC and CyberSentry with the Florida Department
of State in the form required by Section 607.1105 of the FBCA.
Section 1.3. Certificate of Incorporation. The Certificate of
Incorporation of CyberSentry shall, as of the Effective Time, be the Certificate
of Incorporation of the Surviving Corporation until duly amended.
Section 1.4. By-Laws. The By-Laws of CyberSentry shall, as of the
Effective Time, be the By-Laws of the Surviving Corporation until duly amended.
Section 1.5. Officers and Directors. At the Effective Time, the
directors and officers of the Surviving Corporation shall be as follows:
Name Position(s)
---- -----------
Xxxxxx X. Xxxxxxx Chairman of the Board, President and Chief
Executive Officer
Xxx Xxxxxxxxx Senior Vice President and Secretary
Xxxxxxx Xxxxxxxx Treasurer and Chief Financial Officer
R. Xxxx Xxxxxxxxxx Director of Switch Operations
Xxxxx Xxxx Director of Management Information Systems
Xxxxx Xxxxxxxx Executive Vice President of Marketing
Xxxxxx Xxxxxxx Director
Xxxxx Xxxxx Director
The terms and classes of the directors shall be determined by the
Board of Directors of the Surviving Corporation.
Section 1.6. Required Approvals. This Agreement has been adopted and
approved by the stockholders of (i) CyberSentry in accordance with Section 252
of the DGCL, and (ii) TSC in accordance with Section 607.1103 of the FBCA. As of
the date of such approvals, 12,000,000 shares of common stock, par value $.001
per share, of CyberSentry and 100,000 shares of common stock of TSC (the "TSC
Common Shares") were outstanding.
Section 1.7. Corporate Name. The name under which CyberSentry was
originally formed in Delaware was "Telecommunications Services, Inc.".
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ARTICLE II
CONVERSION OF SHARES
Section 2.1. Effect of the Merger on Capital Stock. At the Effective
Time, by virtue of the Merger and without any action on the part of the
Constituent Corporations or the holders of any capital stock thereof:
(a) Cancelation of Outstanding Capital Stock of TSC. All issued and
outstanding shares of capital stock of TSC, and all treasury stock owned by
TSC, shall be canceled and cease to exist.
(b) Conversion of TSC Common Shares. All issued and outstanding TSC
Common Shares shall be converted into 1,000,000 Common Shares, par value $.001
per share ("Common Shares"), of the Surviving Corporation and 1,000,000 Class B
Convertible Redeemable Participating Preferred Stock ($1.50 Liquidation Value),
par value $.001 per share (the "Class B Preferred Shares"), of the Surviving
Corporation, which Common Shares and Class B Preferred Shares shall be issued to
existing shareholders of TSC on a pro rata basis in accordance with the Plan.
(c) Issuance of Additional Preferred and Common Shares. Class A
Convertible Redeemable Participating Preferred Stock ($1.50 Liquidation Value),
par value $.001 per share (the "Class A Preferred Shares"), of the Corporation
shall be issued to the Class Five Creditors (as defined in the Plan) in
accordance with the terms of the Plan and pursuant to all related agreements
regarding the payment of administrative expenses. Additional Common Shares of
the Surviving Corporation may be issued to the Class Five Creditors pursuant to
the Rights Offering provided for in the Plan.
(d) Creation of Preferred Shares. The Class A Preferred Shares of
the Surviving Corporation shall be created pursuant to, and the designation and
amount thereof, and the voting powers, preferences and relative, participating,
optional and other special rights of such shares, and the qualifications,
limitations or restrictions thereof, as provided for in the Supplement to the
Plan dated December 21, 1998, shall be set forth in, two Certificates of
Designation which shall be filed at the Effective Time with the Secretary of
State of the State of Delaware.
(e) Continuance of Capital Stock of CyberSentry. Each CyberSentry
Common Share that is issued and outstanding immediately prior to the Effective
Time shall continue to be issued and outstanding. Each CyberSentry preferred
share that is issued and outstanding immediately prior to the Effective Time
shall be converted into one Class B Preferred Share.
Section 2.2. Closing of Transfer Books. From and after the Effective
Time, the stock transfer books of TSC shall be closed and no transfer of any
capital stock of TSC shall thereafter be made. If, after the Effective Time,
certificates representing any shares of such capital stock are presented to the
Surviving Corporation, they shall be canceled and exchanged for the merger
consideration specified in Section 2.1.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties. Each party hereby
represents and warrants to the other that such party: (i) is a corporation duly
organized and in good standing in its jurisdiction of incorporation; (ii) has
obtained the approval of its board of directors to effect the Merger; and (iii)
has full power and authority to execute, deliver and perform this Agreement.
ARTICLE IV
CLOSING CONDITIONS; THE CLOSING
Section 4.1. Closing Conditions. (a) The consummation of the Merger
and the other transactions provided herein is conditioned upon the satisfaction
of the following conditions: (i) the Plan shall have been approved by the
Bankruptcy Court and the Effective Date under the Plan shall have occurred; and
(ii) there shall not be any pending or threatened litigation, action or
proceeding concerning the Merger or any other transaction contemplated by this
Agreement that, in the judgment of the Board of Directors of CyberSentry, would
materially adversely affect any Constituent Corporation or any right of their
respective equity holders. The parties shall use their commercially reasonable
efforts to satisfy the foregoing conditions.
(b) The closing under this Agreement shall occur on a date not more
than ten business days following the satisfaction of the foregoing conditions at
a place mutually agreed by the parties.
ARTICLE V
TERMINATION OR ABANDONMENT OF MERGER
Section 5.1. Termination. This Agreement may be terminated and the
Merger abandoned at any time prior to the Effective Time by the Board of
Directors of CyberSentry, if the Board of Directors of CyberSentry shall
determine for any reason that the consummation of the transactions contemplated
hereby would be inadvisable or not in the best interests of CyberSentry or its
shareholders.
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ARTICLE VI
AMENDMENTS
Section 6.1. Amendments. At any time prior to the Effective Time,
the parties hereto may by written agreement amend, modify or supplement any
provision of this Agreement, provided that no such amendment, modification or
supplement may be made if, in the sole judgment of the Board of Directors of
CyberSentry, it would adversely affect the rights and interests of CyberSentry's
shareholders in any material respect.
ARTICLE VII
ACCOMPLISHMENT OF MERGER
Section 7.1. Further Assurances. The parties hereto each agree to
execute such documents and instruments and to take whatever action may be
necessary or desirable to consummate the Merger.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Governing Law. This Agreement shall be construed under
and in accordance with the laws of the State of New York applicable to contracts
to be fully performed in such State, without giving effect to choice of law
principles.
Section 8.2. Headings. The headings set forth herein are for
convenience only and shall not be used in interpreting the text of the section
in which they appear.
Section 8.3. Binding Effect; Successors and Assigns. This Agreement
may not be assigned by either party without the written consent of the other
party; this Agreement shall be binding upon and inure to the benefit of the
respective successors and permitted assigns of the parties hereto.
Section 8.4. Counterparts. This Agreement may be executed in
separate counterparts, each of which, when so executed, shall be deemed to be an
original, and such counterparts when taken together shall constitute but one and
the same instrument.
Section 8.5. Extensions of Time. At any time prior to the Effective
Time, the parties hereto may, by written agreement, extend time for the
performance of any of the obligations or other acts of the parties hereto.
Section 8.6. Merger Agreement. A copy of this Agreement is on file
at the principal place of business of CyberSentry, 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxx, Xxxxxxx 00000, and
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will be furnished by the Surviving Corporation, on request and without cost, to
any stockholder or shareholder of either Constituent Corporation.
Section 8.7. Termination of Stock Purchase Agreement. Upon closing
of the Merger under this Agreement, the Stock Purchase Agreement dated as of
August 26, 1998 (the "Purchase Agreement") between TSC and CybeSentry shall,
subject to the following sentence, be terminated and have no further force and
effect, and the $50,000 of the Purchaser Deposit paid to TSC under the Purchase
Agreement shall be returned immediately to Patriot Advisors, Inc. or its
designee. Notwithstanding the foregoing, all representations, warranties and
covenants made by TSC in the Purchase Agreement shall survive until closing of
the Merger under this Agreement, and are hereby incorporated by reference herein
as if fully set forth herein.
Section 8.8. Reimbursement of Expenses. Upon closing of the Merger
under this Agreement, the Surviving Corporation shall promptly reimburse the
officers, directors and shareholders of CyberSentry, as the case may be, for all
costs and expenses incurred by any of such persons in connection with the
Purchase Agreement and the Merger, including without limitation, all legal fees
and expenses.
Section 8.9. Funding. In lieu of the references in the Plan to the
deposit by CyberSentry, upon consummation of the Merger, of $2,500,000 and the
provision of a $1,000,000 operating line of credit, CyberSentry shall contribute
to the Surviving Corporation $500,000 in cash and will provide a working capital
line of credit in the amount of $2,000,000. In addition, the Surviving
Corporation shall have the CyberSentry software technology described in the
Plan.
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IN WITNESS WHEREOF, TSC and CyberSentry have caused this Agreement
to be signed by their respective officers thereunto duly authorized as of the
day first above written.
CYBERSENTRY, INC.
By: /s/ Xxxxxx Xxxxxxx, Pres.
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
TELECOMMUNICATIONS SERVICE CENTER, INC.
By:
----------------------------------
Name:
Title:
CERTIFICATION OF SECRETARY
The undersigned, as Secretary of CyberSentry, Inc., hereby certifies
that a majority of the outstanding stock of CyberSentry, Inc. was voted in favor
of the aforesaid Merger pursuant to and in accordance with the terms of the
above Agreement and Plan of Merger.
/s/ Xxxxxx Xxxxxxx, Secretary
----------------------------------
Secretary
Xxxxxx Xxxxxxx
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IN WITNESS WHEREOF, TSC and CyberSentry have caused this Agreement
to be signed by their respective officers thereunto duly authorized as of the
day first above written.
CYBERSENTRY, INC.
By:
----------------------------------
Name:
Title:
TELECOMMUNICATIONS SERVICE CENTER, INC.
By: /s/ Xxx Xxxxxxxxx, President
----------------------------------
Name: Xxx Xxxxxxxxx
Title: President
CERTIFICATION OF SECRETARY
The undersigned, as Secretary of CyberSentry, Inc., hereby certifies
that a majority of the outstanding stock of CyberSentry, Inc. was voted in favor
of the aforesaid Merger pursuant to and in accordance with the terms of the
above Agreement and Plan of Merger.
----------------------------------
Secretary
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Annex A
CERTIFICATE OF MERGER
Merging
TELECOMMUNICATIONS SERVICE CENTER, INC.
(a Florida corporation)
into
CYBERSENTRY, INC.
(a Delaware corporation)
The undersigned corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the "DGCL") does
hereby certify, pursuant to Section 252 thereof, that:
FIRST: The names and states of incorporation of the constituent
corporations in the Merger (as defined below) are Telecommuncations Service
Center, Inc., a Florida corporation ("TSC") and CyberSentry Inc., a Delaware
corporation ("CyberSentry" or the "Surviving Corporation", and together with
TSC, the "Constituent Corporations").
SECOND: The Agreement and Plan of Merger (the "Merger Agreement")
dated as of __________________, 1999 by and between TSC and CyberSentry
providing for the merger of TSC with and into CyberSentry (the "Merger"), has
been adopted, approved, certified, executed and acknowledged by TSC and
CyberSentry in accordance with the requirements of Sections 607.1107 and
607.1103 of the Florida Business Corporation Act., and Section 252 of the DGCL,
respectively.
THIRD: The name of the Surviving Corporation is "CyberSentry, Inc.".
FOURTH: The Certificate of Incorporation of the Surviving
Corporation shall be its Certificate of Incorporation.
FIFTH: A copy of the Merger Agreement is on file at the principal
place of business of CyberSentry, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx,
Xxxxxxx 00000 , and will be furnished by the Surviving Corporation, on request
and without cost, to any stockholder of either Constituent Corporation.
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SIXTH: The authorized capital stock of TSC is _________________
______________ .
IN WITNESS WHEREOF, the undersigned corporation has caused this
Certificate of Merger to be executed by its duly authorized officer on this ____
day of _______, 1999.
CYBERSENTRY, INC.
By:__________________________
Name:
Title:
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