EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of April 29, 1998 (the "Merger
Agreement"), by and among OnePoint Communications Corp., a Delaware corporation
("OnePoint Corp.") and OnePoint Communications, LLC, a Delaware limited
liability company ("OnePoint, LLC").
WITNESSETH:
WHEREAS, OnePoint Corp. is a corporation duly organized and validly
existing under and by virtue of the laws of the State of Delaware, having
authorized capital stock consisting of: 35,000 shares of Preferred Stock, par
value $1.00 per share (the "OnePoint Corp. Preferred Stock"), none of which are
issued and outstanding; and 2,000,000 shares of Common Stock, par value $0.01
per share (the "OnePoint Corp. Common Stock"), none of which are issued and
outstanding;
WHEREAS, OnePoint, LLC is a limited liability company duly organized and
validly existing under the laws of the state of Delaware, having issued and
outstanding equity interests consisting of 1,000,000 Common Membership Units
(the "OnePoint, LLC Common Units");
WHEREAS, the Board of Directors of OnePoint Corp. and the Manager of
OnePoint, LLC deem it advisable that OnePoint, LLC merge with and into OnePoint
Corp., upon the terms and subject to the conditions set forth herein and in
accordance with the laws of the State of Delaware (the "Merger"), and that the
Common Membership Units of OnePoint, LLC be canceled upon consummation of the
Merger as set forth herein;
WHEREAS, the parties hereto intend that the Merger qualify as tax-free
reorganization for federal income tax purposes; and
WHEREAS, the Board of Directors of OnePoint Corp. and the Manager of
OnePoint, LLC have, by resolutions, duly approved and adopted the provisions of
this Merger Agreement as the agreement of merger required by Section 264 of the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law") and by Section 18-209 of the Delaware Limited Liability Company Act (the
"Delaware LLC Act"), as the foregoing may be applicable to OnePoint Corp.,
OnePoint, LLC, and the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Effect of the Merger; Manner and Basis of Converting and
--------------------------------------------------------
Canceling Units.
---------------
1.1 At the Effective Time (as hereinafter defined), OnePoint, LLC shall be
merged with and into OnePoint Corp., the separate corporate existence of
OnePoint, LLC shall cease (except as may be continued by operation of law), and
OnePoint Corp. shall continue as the surviving corporation, all with the effects
provided by applicable law. OnePoint Corp., in its capacity as the surviving
corporation of the Merger, is hereinafter sometimes referred to as the
"Surviving Corporation."
1.2 At the Effective Time, by virtue of the Merger and without any action
by OnePoint, LLC, the equityholders of OnePoint, LLC, the shareholders OnePoint
Corp. or any other person, all of the issued and outstanding Membership Units of
OnePoint, LLC, together with the promissory note of OnePoint, LLC dated December
3, 1997 made in favor of Ventures in Communications, L.L.C. in the aggregate
principal amount of $1,500,000, shall be cancelled and converted into the right
to receive 35,000 shares of OnePoint Corp. Preferred Stock and 1,000,000 shares
of OnePoint Common Stock, with 1 share of OnePoint Corp. Common Stock and .035
shares of OnePoint Corp. Preferrred Stock issuable for each issued and
outstanding OnePoint, LLC Membership Unit.
1.3 At and after the Effective Time, the Surviving Corporation shall
possess all the rights, privileges, immunities and franchises, of both a public
and private nature, and be subject to all the duties and liabilities, of
OnePoint, LLC; and all rights, privileges immunities and franchises of OnePoint,
LLC, and all property, real, personal and mixed, and all debts due on whatever
account, including subscriptions to shares, and all other choses in action, and
all and every other interest, of or belonging to OnePoint, LLC shall be taken
and deemed to be transferred to and vested in the Surviving Corporation without
further act or deed; and title to any real estate, or any interest therein,
vested in OnePoint, LLC shall not revert or be in any way impaired by reason of
the Merger; and the Surviving Corporation shall thenceforth be responsible and
liable for all liabilities and obligations of OnePoint, LLC; and any claim
existing or action or proceeding pending by or against OnePoint, LLC may be
prosecuted to judgment as if the Merger had not taken place or the Surviving
Corporation may be substituted in its place; all with the effect set forth in
Section 264 of the Delaware Corporation Law and Section 18-209 of the Delaware
LLC Act. The authority of the officers of OnePoint, LLC shall continue with
respect to the due execution in the name of OnePoint, LLC of tax returns,
instruments of transfer or conveyance and other documents where the execution
thereof is required or convenient to comply with any provision of the Delaware
Corporation Law, any contract to which OnePoint, LLC is or was a party or this
Merger Agreement.
1.4 The name of the Surviving Corporation shall be "OnePoint
Communications Corp.".
2
SECTION 2. Effective Time.
--------------
2.1 Upon the fulfillment or waiver of the conditions specified in Section
5 hereof and provided that this Merger Agreement has not been terminated and
abandoned pursuant to Section 6.2 hereof, OnePoint Corp. and OnePoint, LLC shall
cause a Certificate of Merger to be executed, acknowledged and filed with the
Secretary of State of the State of Delaware, all as provided for in and in
accordance with Section 264 of the Delaware Corporation Law and Section 18-209
of the Delaware LLC Act.
2.2 The Merger shall become effective at the time and date as provided by
applicable law (the "Effective Time").
SECTION 3. Additional Agreements.
---------------------
3.1 Each of the parties hereto shall (subject to any qualifications
specified in this Section 3, the conditions specified in Section 5 and the
fiduciary obligations of their respective boards of directors) diligently use
their respective best efforts to cause the Merger to be consummated and to be
consummated at the earliest practicable date. Such best efforts shall include
the vigorous defense of any suit or proceeding instituted against it in
connection with the transactions contemplated by this Merger Agreement.
3.2 OnePoint, LLC shall submit this Merger Agreement and the Merger to its
Members for adoption and approval and shall use its best efforts to solicit from
its Members votes in favor of such adoption and approval and shall take all
other action necessary or helpful to secure a vote of its Members in favor of
the Merger.
3.3 Prior to the Effective Time, each party hereto shall use its best
efforts to obtain the consent of all private third parties and governmental
authorities necessary to its consummation of the Merger.
3.4 Each party hereto shall give prompt notice to the other parties hereto
of the occurrence or failure to occur of any event, which occurrence or failure
would cause or would be likely to cause a condition to the obligation of another
party hereto to effect the Merger not to be satisfied.
SECTION 4. Certificate of Incorporation and By-laws; Board of Directors.
------------------------------------------------------------
4.1 The Certificate of Incorporation and By-laws of OnePoint Corp. as in
effect at the Effective Time shall govern the Surviving Corporation.
3
4.2 The members of the Board of Directors and the officers of OnePoint
Corp. holding office immediately prior to the Effective Time shall be the
members of the Board of Directors and the officers (holding the same positions
as they held with OnePoint Corp. immediately prior to the Effective Time) of the
Surviving Corporation and shall hold such offices until the expiration of their
current terms, or until their earlier death, resignation or removal.
SECTION 5. Conditions.
----------
5.1 The respective obligation of OnePoint, LLC and OnePoint Corp. to
consummate the Merger under this Merger Agreement is subject to the fulfillment
of the following conditions:
(a) At the option of OnePoint, LLC or OnePoint Corp., any third party
consents which are required in order to avoid a breach, violation, conflict or
default under any agreement, contract, statute, rule or regulation shall have
been obtained;
(b) This Merger Agreement and the Merger shall have been approved and
adopted by the Members of OnePoint, LLC;
(c) There shall have been no law, statute, rule or regulation,
domestic or foreign, enacted or promulgated which would make consummation of the
Merger illegal and no such law, statute, rule or regulation shall be in effect;
and
(d) No preliminary or permanent injunction or other order by any
federal or state court of competent jurisdiction that makes illegal or otherwise
prevents the consummation of the Merger shall be in effect.
SECTION 6. Amendment and Termination.
-------------------------
6.1 OnePoint, LLC and OnePoint Corp., by mutual consent of OnePoint, LLC's
Manager and OnePoint Corp.'s Board of Directors, may amend, modify or supplement
this Merger Agreement in such manner as may be agreed upon by them in writing.
6.2 This Merger Agreement may be terminated and the Merger may be
abandoned for any reason by a resolution adopted jointly by the Board of
Directors of OnePoint Corp. and the Manager of OnePoint, LLC or at any time
prior to the Effective Time. In the event of the termination of this Merger
Agreement as provided herein, this Merger Agreement shall forthwith become void
and there shall be no liability hereunder on the part of OnePoint, LLC, OnePoint
Corp. or their respective officers, directors or managers, except liability for
intentional breach or misrepresentation or common law fraud.
SECTION 7. Service of Process.
------------------
4
7.1 The Surviving Corporation hereby agrees that it may be served with
process in the State of Delaware in any proceeding for the enforcement of any
obligation of OnePoint Communications, LLC or OnePoint Communications Corp. and
hereby irrevocably appoints the Secretary of State of the State of Delaware as
its agent to accept service of process in any such proceeding.
7.2 A copy of any service of process received in connection with Section
7.1 above should be mailed to:
OnePoint Communications Corp.
0000 Xxxxxxxx Xxxx, Xxxxx X-000
Xxxxxxxxxxx, XX 00000
Attn: President
SECTION 8. Miscellaneous.
-------------
8.1 This Merger Agreement may be executed in one or more counterparts, all
of which taken together shall constitute one and the same instrument.
8.2 The internal law, not the law of conflicts, of the State of Delaware
will govern all questions concerning the construction, validity and
interpretation of this Merger Agreement.
8.3 This Merger Agreement is not intended to confer upon any person (other
than the parties hereto and their respective successors and assigns) any rights
or remedies hereunder or by reason hereof.
* * * * *
5
IN WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to
be signed by their respective officers thereunto duly authorized and their
respective corporate seals affixed, all as of the day and year first written
above.
ONEPOINT COMMUNICATIONS CORP.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxx
Its: President
ONEPOINT COMMUNICATIONS, LLC, a
Delaware limited liability
company
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxx
Its: Manager
6
