EXHIBIT A
AGREEMENT AND PLAN OF MERGER
Parties: KeyCom, Inc.
A Delaware Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Emergent Financial Group, Inc.
a Delaware corporation ("Emergent")
000-00000Xxxxxx Xxxx
Xxxxxxxx, XX X0X0X0
KeyCom Holding Corporation
a Delaware corporation ("Newco")
000-00000Xxxxxx Xxxx
Xxxxxxxx, XX X0X0X0
Date: July 19, 2001
Background: Newco is a wholly owned subsidiary of Emergent. KeyCom, Emergent
and Newco have entered into an Agreement and Plan of Reorganization, dated this
date (the "Reorganization Agreement"), that contemplates the merger of Newco
with and into KeyCom (the "Merger") in accordance with the provisions of the
Reorganization Agreement and the provisions of this Agreement and Plan of Merger
(this "Plan").
Now, therefore, in consideration of the mutual agreements contained herein
and subject to the satisfaction of the terms and conditions set forth herein and
in the Reorganization Agreement, the parties hereto, intending to be legally
bound, agree as follows:
1. Merger. KeyCom shall be merged with and into Newco in accordance
with the provisions of this Plan and in compliance with the Delaware General
Corporation Law (DGCL and, collectively the "Corporation Laws"), and the Merger
shall have the effect provided for in the Corporation Laws. Newco (sometimes
referred to as the "Surviving Corporation") shall be the surviving corporation
of the Merger and shall exist and be governed by the laws of the State of
Delaware. The corporate existence and identity of Newco, with its purposes and
powers, shall continue unaffected and unimpaired by the Merger, and Newco shall
become a wholly-owned subsidiary of Emergent after the Effective Date. On the
Effective Date, Newco shall succeed to and be fully vested with the corporate
existence and identity of KeyCom, and the separate corporate existence and
identity of KeyCom shall cease.
2. Name. The name of the Surviving Corporation shall be KeyComKeyCom
Holding Corporation.
3. Charter. Immediately after the Merger, the Certificate of
Incorporation of the Surviving Corporation shall be that of KeyCom immediately
before the Merger.
4. Bylaws. Immediately after the Merger, the Bylaws of the Surviving
Corporation shall be those of KeyCom immediately before the Merger.
5. Directors. Immediately after the Merger, the directors of the
Surviving corporation shall be the directors of KeyCom, who shall serve in
accordance with the Bylaws of the Surviving Corporation:
6. Officers. Immediately after the Merger, the officers of the
Surviving Corporation shall be the officers of KeyCom, who shall serve in
accordance with the Bylaws of the Surviving Corporation:
7. Conversion of Newco Stock. On the Effective Date, each share of the
total of 20,000 shares of common stock of Newco, par value $.001 per share,
issued and outstanding immediately before the Effective Date shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
automatically converted into and become one share of common stock, par value
$.001 per share, of the Surviving Corporation. It is the intention of the
parties that, immediately after the Merger, Emergent shall own all of the issued
and outstanding capital stock of the Surviving Corporation.
8. Delivery of Preferred Stock. Subject to the possible adjustment
described in Section 9 of this Plan, on the Effective Date, the shares of common
stock of KeyCom, par value $.001 (the "KeyCom Stock") (except for Dissenting
Shares, as defined in Section 14 of this Plan) issued and outstanding
immediately before the Effective Date shall, by virtue of the Merger and without
any action on the part of the holder thereof, be automatically converted into
$25 million of Senior Series E Preferred Stock, par value $.001, possessing all
of the rights and privileges declared by the Board of Directors of Emergent and
stated in the Certificate of Designations of Rights, Preferences, Privileges and
Restrictions of Preferred Stock of Emergent. Each former holder of KeyCom stock
shall receive Preferred Stock based in the same percentage of the total issue of
the Preferred Stock as such KeyCom stockholder's percentage of authorized and
issued common stock held as of the Effective Date.
9. No Fractional Shares. No fractional shares of Preferred Stock
shall be issued as a result of the Merger. In lieu of the issuance of
fractional shares, the number of shares of Preferred Stock to be issued to each
shareholder of KeyCom in accordance with this Plan shall be rounded off to the
nearest whole number of shares of Preferred Stock.
10. KeyCom Stock held by KeyCom. On the Effective Date, any shares of
KeyCom Stock that are held by KeyCom (as treasury shares) immediately before the
Effective Date shall, by virtue of the Merger and without any action on the part
of the holder thereof, be automatically canceled.
11. Dissenting Shares:
(a) Notwithstanding any other provisions of this Plan to the contrary,
shares of KeyCom stock which are outstanding immediately prior to the Effective
Date and which are held by stockholders of KeyCom who shall have not voted in
favor of the Merger or consented thereto in writing and who shall have demanded
properly in writing an appraisal for such shares (collectively, the "Dissenting
Shares") in accordance with the Plan of Merger (each a "Dissenting Shareholder"
and collectively, the "Dissenting Shareholders") shall not receive Senior
Preferred Stock or represent the right to receive such Preferred Stock, such
Dissenting Shareholders being entitled to receive payment of the appraised value
of such shares held by them in accordance with the provisions of the Designation
of Rights attendant such shares, except that all Dissenting Shares held by
Shareholders who shall have failed to perfect or shall have effectively
withdrawn or lost their rights to appraisal of such shares of KeyCom stock in
accordance with the provisions of the Plan of Merger shall thereupon be deemed
to have the right to receive Preferred Shares in accordance with Section 8
hereof, without interest thereon.
(b) KeyCom shall give Emergent and Newco (i) prompt notice of any written
demands for payment or appraisal of an Dissenting Shares pursuant to the Pland
of Merger and received by KeyCom relating to shareholders' rights to dissent and
(ii) the opportunity to participate, at its expense, in all negotiations and
proceedings with respect for demand for payment or appraisal under the Plan of
Merger. KeyCom shall not, without the prior consent of Emergent voluntarily
make any payment with respect to any demands for payment or appraisals of the
capital stock of KeyCom or offer to settle or settle any demands.
12. Effective Date. As used in this Plan, the "Effective Date" shall
mean the date upon which this Plan and a proper Certificate of Merger for the
Merger have been duly signed and filed with the proper officials of the States
of Delaware.
13. Tax Consequences. For federal income tax purposes, the Merger is
intended to constitute a reorganization within the meaning of Section 368 of the
Code. The parties to this Agreement hereby adopt this Agreement as a "plan of
reorganization" within the meaning of Sections 1.368-2(g)( and 1.368-3(a) of the
United States Treasury Regulations.
14. Entire Understanding. This Plan, together Registration Rights
Agreement, The Security Agreement, and this Reorganization , states the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior oral and written communications and agreements, and all
contemporaneous oral communications and agreements, with respect to the subject
matter hereof. No amendment or modification of this Plan, and no waiver of any
provision of this Plan, shall be effective unless in writing and signed by the
party against whom enforcement is sought. KeyCom may agree to any amendment or
supplement to this Plan, or a waiver of any provision of this Plan, either
before or after the approval of KeyCom's stockholders is obtained (as
contemplated by the Reorganization Agreement) and without seeking further
stockholder approval, so long as such amendment, supplement or waiver does not
result in a decrease in any of the issuance of Preferred Stock according to
Schedule "A" and a set forth in Section 8 of this Plan, or have a material
adverse effect on KeyCom's stockholders. The obligations of the parties under
this Plan shall be subject to all of the terms and conditions of the
Reorganization Agreement. If the Reorganization Agreement is terminated in
accordance with its terms, then this Plan shall simultaneously terminate, and
the Merger shall be abandoned without further action by the parties hereto.
19. Parties in Interest. This Plan shall bind, benefit and be
enforceable by and against the parties hereto and their respective successors
and assigns. No party hereto shall in any manner assign any of its rights or
obligations under this Plan without the express prior written consent of the
other parties. Nothing in this Plan or the Reorganization Agreement is intended
to confer, or shall be deemed to confer, any rights or remedies upon any persons
other than the parties hereto and their respective stockholders and directors.
20. Severability. If any provision of this Plan is construed to be
invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto.
21. Counterparts. This Plan may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original
hereof, and it shall not be necessary in making proof of this Plan to produce or
account for more than one counterpart hereof.
22. Section Headings. Section and subsection headings in this Plan are
for convenience of reference only, do not constitute a part of this Plan, and
shall not affect its interpretation.
23. References. All words used in this Plan shall be construed to be
of such number and gender as the context requires or permits.
In Testimony Whereof, each undersigned corporation has caused this
Agreement and Plan of Merger to be signed by a duly authorized officer as of the
date first stated above.
KeyCom, Inc. KeyCom Holding Corp.
By: __________________________ By ____________________________
Name: Xxxxxx X. Xxxx Name: Xxxxx Xxxxxxx
Title: President Title: President and CEO
Emergent Financial Group, Inc.
By: __________________________
Name: Xxxxx Xxxxxxx
Title: President and CEO
