AGREEMENT AND PLAN OF MERGER
OF
ICHARGEIT, INC., A TEXAS CORPORATION
AND
ICHARGEIT, INC., A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of
November 11, 1999, is made and entered into by and between iChargeit, Inc., a
Texas corporation ("iChargeit-Texas"), and iChargeit, Inc., a Delaware
corporation ("iChargeit-Delaware"), which corporations are sometimes referred to
herein as the "Constituent Corporations."
W I T N E S S E T H:
WHEREAS, iChargeit-Texas is a corporation organized and existing under
the laws of the State of Texas and had an authorized capital of 55,000,000
shares, 50,000,000 of which are designated "Common Stock," $.001 par value, and
5,000,000 of which are designated "Preferred Stock," $1.00 par value. As of
October 20, 1999, 7,861,405 shares of Common Stock were issued and outstanding.
No shares of Preferred Stock were outstanding. iChargeit-Texas originally was
incorporated as Para-Link, Inc. on January 22, 1997; and
WHEREAS, iChargeit-Delaware is a wholly-owned subsidiary corporation of
iChargeit-Texas, having been incorporated on November 5, 1999; and
WHEREAS, the respective Boards of Directors of iChargeit-Texas and
iChargeit-Delaware have determined that it is in the best interests of
iChargeit-Texas and its shareholders that iChargeit-Texas merge with and into
iChargeit-Delaware (the "Merger"); and
WHEREAS, the respective Boards of the Constituent Corporations have
approved this Agreement and have directed that this Agreement be submitted to a
vote of their respective stockholders; and
WHEREAS, the parties intend by this Agreement to effect a
reorganization under Section 368 of the Internal Revenue Code of 1986, as
amended.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that
iChargeit-Texas shall be merged into iChargeit-Delaware upon the terms and
conditions set forth.
ARTICLE I
MERGER
On the effective date of the Merger (the "Effective Date") as provided
herein, iChargeit-Texas shall be merged into iChargeit-Delaware, the separate
existence of iChargeit-Texas shall cease and iChargeit-Delaware (hereinafter
sometimes referred to as the "Surviving Corporation") shall continue to exist
under the name of iChargeit, Inc. by virtue of, and shall be governed by, the
laws of the State of Delaware. The address of the registered office of the
Surviving Corporation in the State of Delaware will be 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1. CERTIFICATE OF INCORPORATION. The name of the Surviving
Corporation shall be "iChargeit, Inc." The Certificate of Incorporation of the
Surviving Corporation as in effect on the date hereof shall be the Certificate
of Incorporation of iChargeit-Delaware (the "Delaware Charter") without change
unless and until amended in accordance with Article VI of this Agreement or
otherwise amended in accordance with applicable law.
2.2. BYLAWS. The Bylaws of the Surviving Corporation as in effect on
the date hereof shall be the Bylaws of iChargeit-Delaware (the "Delaware
Bylaws") without change unless and until amended in accordance with applicable
law.
2.3. OFFICERS AND DIRECTORS. Upon the Effective Date, the officers and
directors of iChargeit-Texas shall become the officers and directors of
iChargeit-Delaware, and such persons shall hold office in accordance with the
Delaware Bylaws until their respective successors shall have been appointed or
elected.
If upon the Effective Date, a vacancy shall exist in the Board of
Directors of the Surviving Corporation, such vacancy shall be filled in the
manner provided by the Delaware Bylaws.
ARTICLE III
EFFECT OF MERGER ON STOCK OF CONSTITUENT CORPORATIONS
3.1. CONVERSION OF SHARES. On the Effective Date, each outstanding
share of common stock of iChargeit-Texas, par value $.001 per share (the "Common
Stock"), other than the shares, if any, for which appraisal rights shall be
perfected under Articles 5.12 and 5.13 of the Texas Business Corporation Act
("TBCA"), shall be converted into and exchanged for one share of
iChargeit-Delaware common stock, par value $.001 per share (the "Delaware Common
Stock"), and each outstanding share of Delaware Common Stock held by
iChargeit-Texas shall be retired and canceled. The shares of Delaware Common
Stock shall be identical to the shares of Common Stock in all other aspects.
3.2. OPTIONS. All options and rights to acquire the Common Stock under
iChargeit 1999 Stock Incentive Plan, and under all other outstanding options,
warrants or rights outstanding on the Effective Date automatically will be
converted into equivalent options and rights to purchase the same number of
shares of Delaware Common Stock. A number of shares of the Surviving
Corporation's Common Stock shall be reserved for issuance upon the exercise of
options, equal to the number of shares of iChargeit-Texas Common Stock so
reserved immediately before the Effective Date of the Merger.
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3.3. EXCHANGE OF CERTIFICATES. After the Effective Date, certificates
representing shares of the Common Stock will represent shares of Delaware Common
Stock and upon surrender of the same to the transfer agent for
iChargeit-Delaware, the holder thereof shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of
Delaware Common Stock into which such shares of Common Stock shall have been
converted pursuant to Article 3.1 of this Agreement.
Until Certificates representing shares of iChargeit-Texas are
surrendered for transfer or conversion, the registered owner of the Common Stock
of the Surviving Corporation represented by such Certificate on the books and
records of the Surviving Corporation shall have voting and other rights with
respect to and to receive dividends and other distributions upon the Shares of
Common Stock of the Surviving Corporation represented by such Certificates as
provided above.
Each certificate representing Common Stock of the Surviving Corporation
so issued in the merger shall bear the same legends, if any, with respect to
restrictions on transferability as the certificates of iChargeit-Texas so
converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving corporation in compliance with applicable
laws.
If any certificate for shares of iChargeit-Delaware stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer and that such transfer otherwise be proper.
ARTICLE IV
CORPORATE EXISTENCE, POWERS AND
LIABILITIES OF THE SURVIVING CORPORATION
4.1. TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, the
separate existence of iChargeit-Texas shall cease. iChargeit-Texas shall be
merged with and into iChargeit-Delaware, the Surviving Corporation, in
accordance with the provisions of this Agreement. Thereafter, iChargeit-Delaware
shall possess all the rights, privileges, powers and franchises of a public as
well as of a private nature of each of the Constituent Corporations, and shall
be subject to all the restrictions, disabilities and duties of each of the
Constituent Corporations; all singular rights, privileges, powers and franchises
of iChargeit-Texas and iChargeit-Delaware, and all property, real, personal and
mixed and all debts due to each of them on whatever account, shall be
transferred to and vested in iChargeit-Delaware; and all property, rights,
privileges, powers and franchises, and all and every other interest of each of
the Constituent Corporations shall be thereafter as effectively the property of
iChargeit-Delaware, the Surviving Corporation, as they were of each of the
Constituent Corporations, and the title to any real estate, whether by deed or
otherwise, vested in iChargeit-Texas and iChargeit-Delaware, or either of them,
shall not revert or be in any way impaired by reason of the Merger, but all
rights of creditors and all liens upon the property of each of the Constituent
Corporations, shall be preserved unimpaired, and all debts, liabilities and
duties of iChargeit-Texas, shall thenceforth attach to iChargeit-Delaware, and
may be enforced against it to the same extent as if said debts, liabilities and
duties had been incurred or contracted by it.
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4.2. FURTHER ASSURANCES. iChargeit-Texas agrees that it will execute
and deliver, or cause to be executed and delivered, all such deeds and other
instruments and will take or cause to be taken such further or other action as
the Surviving Corporation may deem necessary in order to vest in and confirm to
the Surviving Corporation title to and possession of all the property, rights,
privileges, immunities, powers, purposes and franchises, and all and every other
interest of iChargeit-Texas and otherwise to carry out the intent and purposes
of this Agreement.
ARTICLE V
DISSENTING SHARES
Holders of shares of Common Stock who have complied with all
requirements for perfecting their rights of appraisal set forth in Articles 5.12
and 5.13 of the TBCA shall be entitled to their rights under Texas law.
ARTICLE VI
APPROVAL BY SHAREHOLDERS, EFFECTIVE DATE,
CONDUCT OF BUSINESS PRIOR TO EFFECTIVE DATE
6.1. APPROVAL. As soon as practicable after the approval of this
Agreement by the requisite number of shareholders of iChargeit-Texas, the
respective Boards of Directors of iChargeit-Texas and iChargeit-Delaware will
cause their duly authorized officers to make and execute Articles of Merger and
a Certificate of Ownership and Merger or other applicable certificates or
documentation effecting this Agreement and shall cause the same to be filed with
the Secretaries of State of Texas and Delaware, respectively, in accordance with
the Texas Business Corporation Act (the "TBCA") and the Delaware General
Corporation Law (the "DGCL"), the Effective Date shall be the date on which the
Merger becomes effective under the DGCL.
6.2. AMENDMENT. The Boards of Directors of iChargeit-Texas and
iChargeit-Delaware may amend this Agreement and the Delaware Charter at any time
prior to the Effective Date, provided that an amendment made subsequent to the
approval of the Merger by the shareholders of iChargeit-Texas may not (i) change
the assessment or type of shares to be received in exchange for or on conversion
of the shares of the Common Stock; or (ii) change any term of the terms and
conditions of this Agreement if such change would adversely affect the holders
of the Common Stock.
ARTICLE VII
TERMINATION OF MERGER
This Agreement may be terminated and the Merger abandoned at any time
prior to the Effective Date, whether before or after shareholder approval of
this Agreement, by the consent of the Board of Directors of iChargeit-Texas and
iChargeit-Delaware. In the event this Agreement is terminated, it shall become
wholly void and of no effect and no liability on the part of either Constituent
Corporation, its Board or stockholders shall arise by virtue of such
termination.
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ARTICLE VIII
MISCELLANEOUS
8.1. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware and, insofar as applicable,
the Merger provisions of the Texas Business Corporation Act.
8.2. EXPENSES. If the Merger becomes effective, the Surviving
Corporation shall assume and pay all expenses in connection therewith not
theretofore paid by the respective parties. If for any reason the Merger shall
not become effective, iChargeit-Texas shall pay all expenses incurred in
connection with all the proceedings taken in respect of this Merger Agreement or
relating thereto.
8.3. AGREEMENT. An executed copy of this Merger Agreement will be on
file at the principal place of business of the Surviving Corporation at 0000
Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, 00000, and, upon request and without
cost, a copy thereof will be furnished to any shareholder.
8.4. COUNTERPARTS. This Merger Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective Presidents and Secretaries, all as of the day and
year first above written.
ATTEST: iChargeit, INC.,
a Texas corporation
/s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxx
--------------------------------- ---------------------------
Xxxxx Xxxxx, Secretary Xxxxx Xxxxx, President
ATTEST: iChargeit, INC.,
a Delaware corporation
/s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxx
--------------------------------- ------------------------------------
Xxxxx Xxxxx, Secretary Xxxxx Xxxxx, Chief Executive Officer
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