1
EXHIBIT 10.2
AGREEMENT AND PLAN OF MERGER
BETWEEN
ACCESSPOINT CORPORATION
AND
J.S.J. CAPITAL III, INC.
DATED
APRIL 12, 2000
AGREEMENT AND PLAN OF MERGER ("Agreement") dated
April 12, 2000, by and among ACCESSPOINT CORPORATION, a
Nevada corporation ("Accesspoint") and J.S.J. CAPITAL III, INC., a
Nevada corporation ("J.S.J.").
RECITALS
WHEREAS, the Board of Directors of each of Accesspoint and J.S.J. (being
sometimes collectively referred to herein as the "Constituent Corporations"
deems it advisable for the general welfare of its stockholders that the
Constituent Corporations merge (the "Merger") into a single corporation pursuant
to this Agreement and the applicable laws of the State of Nevada; and
WHEREAS, the Constituent Corporations desire to adopt this Agreement as
a Plan of Reorganization and to consummate the merger in accordance with the
provisions of Section 368(a) (1) of the Internal Revenue Code of 1986, as
amended.
NOW, THEREFORE, the Constituent Corporations agree that J.S.J. shall be
merged with and into Accesspoint, with Accesspoint as the surviving corporation
in accordance with the applicable laws of Nevada (which in its capacity as
surviving corporation is hereinafter called the "Surviving Corporation"), that
the Surviving Corporation shall continue to exist under the name Accesspoint
pursuant to the provisions of the Nevada Revised Statutes ("NRS"), and, subject
to the applicable provisions of the California Corporations Code ("CCC") and the
NRS, that the terms and conditions of the merger and the mode of carrying it
into effect shall be as follows:
ARTICLE 1
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2), upon
the terms and subject to the conditions of this Agreement and the NRS, J.S.J.
shall be merged with and into Accesspoint, the separate corporate existence of
J.S.J. shall cease and Accesspoint shall continue after the Merger as the
Surviving Corporation under the laws of the State of Nevada. This Agreement
shall be submitted to shareholders of the Constituent Corporations in the manner
prescribed by the provisions of the NRS and, if applicable, the CCC to be
approved at meetings called for that purpose or by written consents in lieu of a
meeting.
1.2 Effective Time; Closing. Within five (5) days after adoption of this
Agreement by shareholders of the Constituent Corporations pursuant to the laws
of the States of Nevada and California and the satisfaction or waiver of the
conditions set forth in Article 6, the parties hereto shall cause the Merger to
be consummated by executing, delivering and filing the Articles of Merger with
the Secretary of State of the State of Nevada in such form as required by, and
executed in accordance with the relevant provisions of the NRS (the time of such
filing being the "Effective Time"), and the parties shall take all such other
and further actions as may be required by law to cause the Merger to become
effective. Prior to the filing of the Certificate of Merger, a closing (the
"Closing") will be held by telephone and facsimile among the parties hereto and
their counsel for the purpose of confirming all the foregoing.
1
2
1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the NRS. Without
limiting the generality of the foregoing, and subject thereto, at the Effective
Time all the property, rights, privileges, powers and franchises of J.S.J. and
Accesspoint shall vest in the Surviving Corporation, and all debts, liabilities
and duties of J.S.J. and Accesspoint shall become the debts, liabilities and
duties of the Surviving Corporation.
1.4 Subsequent Actions. After the Effective Time, the Surviving
Corporation shall consider or be advised that deeds, bills of sale, assignments,
assurances or any other actions or things may be necessary or desirable to vest,
perfect or confirm of record or otherwise in the Surviving Corporation its
right, title or interest in, to or under any of the rights, properties or assets
of either of J.S.J. or Accesspoint acquired or to be acquired by the Surviving
Corporation as a result of, or in connection with, the Merger or otherwise to
carry out this Agreement. In such event, the officers and directors of the
Surviving Corporation shall be authorized to execute and deliver, in the name
and on behalf of either J.S.J. or Accesspoint, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of each
of such corporations or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title and
interest in, to and under such rights, properties or assets in the Surviving
Corporation or otherwise to carry out this Agreement.
1.5 Certificate of Incorporation; By-Laws; Directors and Officers.
(a) At the Effective Time, the Articles of Incorporation of
Accesspoint as in effect immediately before the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by law;
(b) At the Effective Time, the By-Laws of Accesspoint, as in
effect immediately before the Effective Time, shall be the By-Laws of the
Surviving Corporation until thereafter amended as provided by the NRS, the
Articles of Incorporation of the Surviving Corporation and such By-Laws.
(c) The board of directors Accesspoint immediately prior to the
Effective Time shall be the initial board of directors of the Surviving
Corporation after the Merger until their successors are duly elected or
appointed and shall qualify. The officers of Accesspoint immediately before the
Effective Time will be the and officers of the Surviving Corporation until their
successors are duly elected or appointed and shall qualify. If, at the Effective
Time, a vacancy shall exist on the Board of Directors or in any office of the
Surviving Corporation, such vacancy may thereafter be filled in the manner
provided by law or by the Articles of Incorporation and By-Laws of the Surviving
Corporation.
2
3
1.6 Treatment of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of Accesspoint, J.S.J. or the
holder of any of the following securities:
(a) Each of the shares of the issued and outstanding Common Stock of
Accesspoint immediately prior to the Effective Time shall continue to represent
one fully paid and non-assessable share of Common Stock of the Surviving
Corporation.
(b) Each issued and outstanding shares of Common Stock of J.S.J.
immediately prior to the Effective Time shall be converted into and shall
represent an equal number of fully paid and non-assessable shares of the
Surviving Corporation which the be immediately canceled and extinguished and
returned to the authorized but unissued shares of Accesspoint.
(c) Each Share held in the treasury of Accesspoint or J.S.J immediately
prior to the Effective Time shall be cancelled and extinguished and no payment
or other consideration shall be made with respect thereto.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF
ACCESSPOINT
Accesspoint represents and warrants to, and agree with, J.S.J. as
follows:
2.1 Organization.
(a) Accesspoint is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada. Accesspoint has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted.
2.2 Authority Relative to this Agreement. Accesspoint has full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Accesspoint and, except for
approval of the shareholders of Accesspoint, no other corporate proceedings on
the part of Accesspoint are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Accesspoint and constitutes a valid and
binding agreement, enforceable against it in accordance with its terms.
3
4
2.3 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Accesspoint
does not, and the consummation of the transactions contemplated hereby will not,
(i) to the best knowledge of Accesspoint after due inquiry
("Best Knowledge"), conflict with or violate any law, regulation, court order,
judgment or decree applicable to Accesspoint or by which its properties are
bound or affected, (ii) violate or conflict with either the Certificate of
Incorporation or By-Laws of Accesspoint or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any right of termination or
cancellation of, or result in the creation of a lien on any of the properties of
Accesspoint pursuant to any contract to which Accesspoint is a party or by which
Accesspoint or any of its respective properties is bound or affected.
(b) Except for compliance with applicable state securities laws,
Accesspoint is not required to submit any notice, report or other filing with
any governmental entity or regulating body, domestic or foreign, in connection
with the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby. No waiver, consent,
approval or authorization of any governmental entity or regulatory body,
domestic or foreign, is required to be obtained or made by Accesspoint in
connection with its execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
2.4 Capitalization. As of the Closing, Accesspoint shall have authorized
capital stock of Thirty Million (30,000,000) shares, divided into Twenty-Five
Million (25,000,000) shares of common stock, par value $.001 per share, and Five
Million (5,000,000) shares of preferred stock, par value $.001 per share. All
the outstanding shares of capital stock of Accesspoint have been duly authorized
and are validly issued, fully paid and non-assessable.
2.5 Litigation. No investigation or review by any governmental entity or
regulatory body, foreign or domestic, with respect to Accesspoint is pending or,
to the Best Knowledge of Accesspoint, threatened against Accesspoint, and no
governmental entity or regulatory body has advised Accesspoint of an intention
to conduct the same. There is no claim, action, suit, investigation or
proceeding pending or, to the Best Knowledge of Accesspoint, threatened against
or affecting Accesspoint at law or in equity or before any federal, state,
municipal or other governmental entity or regulatory body, or which challenges
the validity of this Agreement or any action taken or to be taken by Accesspoint
pursuant to this Agreement. As of the date hereof, Accesspoint is not subject
to, nor is there in existence, any outstanding judgment, award, order, writ,
injunction or decree of any court, governmental entity or regulatory body
relating to Accesspoint.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF
J.S.J.
4
5
J.S.J. represents and warrants to, and agrees with, Accesspoint as
follows:
3.1 Organization.
(a) J.S.J. is a corporation duly organized, validly existing and
in good standing under the laws of Nevada and has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
3.2 Authority Relative to this Agreement. J.S.J. has full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of J.S.J. and no other corporate
proceedings on the part of J.S.J. are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by J.S.J. and constitutes a valid and binding
agreement, enforceable against it in accordance with its terms.
3.3 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by J.S.J. does
not, and the consummation of the transactions contemplated hereby will not, (i)
to the Best of Knowledge of J.S.J. after due inquiry ("Best Knowledge"),
conflict with or violate any law, regulation, court order, judgment or decree
applicable to J.S.J. or by which its properties are bound or affected, (ii)
violate or conflict with either the Certificate of Incorporation or By-Laws of
J.S.J. or (iii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any right of termination or cancellation of, or result in the
creation of a lien on any of the properties of J.S.J. pursuant to any contract
to which J.S.J. is a party or by which J.S.J. or any of its respective
properties is bound or affected.
(b) Except for compliance with applicable state securities laws,
J.S.J. is not required to submit any notice, report or other filing with any
governmental entity or regulating body, domestic or foreign, in connection with
the execution, delivery or performance of this Agreement or the consummation of
the transactions contemplated hereby. No waiver, consent, approval or
authorization of any governmental entity or regulatory body, domestic or
foreign, is required to be obtained or made by J.S.J. in connection with its
execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
3.4 Capitalization. J.S.J. has authorized capital stock of
50,000,000 shares of common stock, par value of $.0001 per share. J.S.J.
has authorized no preferred shares. All the outstanding shares of capital
stock of J.S.J. have been duly authorized and are validly issued,
fully paid and non-assessable.
3.5 Litigation. No investigation or review by any governmental
entity or regulatory body, foreign or domestic, with respect to J.S.J.
is pending or, to the best knowledge of J.S.J. threatened against J.S.J.,
and no governmental entity or regulatory body has advised J.S.J. of an
intention to conduct the same. There is no claim, action, suit,
investigation or proceeding pending or, to the knowledge of J.S.J.,
threatened against or affecting J.S.J. at law or in equity or before
any federal, state, municipal or other governmental entity or regulatory
body, or which challenges the validity of this Agreement or any action
taken or to be taken by J.S.J. pursuant to this Agreement. As of the date
hereof, J.S.J. is not subject to, nor is there in existence, any outstanding
judgment, award, order, writ, injunction or decree of any court, governmental
entity or regulatory body relating to J.S.J..
5
6
3.6 Books and Records. The corporate minute books, stock certificate
books, stock registers and other corporate records of J.S.J. are correct and
complete in all material respects, and the signatures appearing on all documents
contained therein are the true signatures of the persons purporting to have
signed the same.
ARTICLE 4
COVENANTS
4.1 Conduct of Business. From the date hereof to the Effective Time,
each of Accesspoint and J.S.J. shall:
(a) conduct its business only in the ordinary course and in
substantially the same manner as heretofore conducted;
(b) maintain and keep its material properties and equipment in
good repair, working order and condition, except for ordinary wear and tear;
(c) use its best efforts to keep in full force and effect
insurance comparable in amount and scope of coverage to that now maintained by
it;
(d) perform in all material respects all of its obligations under
all Contracts applicable to its business or properties;
(e) use its best efforts to maintain and preserve its business
organization intact, retain its present employees so that they will be available
after the Effective Time, and maintain its relationships with its customers so
that they will be preserved after the Effective Time;
(f) Other than as contemplated by this Agreement, not change its
articles of incorporation or bylaws.
(g) Other than as contemplated by this Agreement, not make any
change in its authorized or issued capital stock, or issue, encumber, purchase
or otherwise acquire any of its capital stock other than as provided for in this
Agreement.
6
7
4.2 Best Efforts. Subject to the terms and conditions herein provided,
each of the Accesspoint and J.S.J. shall to use its best efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations, including
to make all required submissions or filings with governmental entities and
regulatory bodies, to consummate and make effective the transactions
contemplated by this Agreement. If at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each party to this Agreement
shall take all such necessary action. Accesspoint and J.S.J. will execute any
additional instruments necessary to consummate the transactions contemplate
hereby.
ARTICLE 5
NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All statements contained herein or in any certificate, schedule or other
document delivered pursuant hereto shall be deemed representations and
warranties by the person delivering the same. All representations and warranties
shall survive the Effective Time and shall not be affected by any investigation
at any time made by or on behalf of Accesspoint, on the one hand, or J.S.J., on
the other hand.
ARTICLE 6
GENERAL PROVISIONS
6.1 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
6.2 Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.3 Governing Law; Venue. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
without regard to conflict of laws. Venue for any legal action arising out of
this Agreement shall be Orange County, California.
6.4 Assignment. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
7
8
6.5 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
6.6 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made as of
the date delivered or mailed if delivered in person, by telecopy, cable,
telegram or telex, or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties as directed by them from time to
time.
6.7 Descriptive Headings; Table of Contents. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement. The Table
of Contents preceding this Agreement is not a part hereof.
6.8 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, its successors and assigns.
6.9 Attorney's Fees. The prevailing party in any action for enforcement
or interpretation of this Agreement shall be entitled to recover, as part of its
judgment, reasonable attorney's fees and costs of such suit.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
Accesspoint Corporation, a
Nevada Corporation
By: /s/ Xxx X. Xxxxxxxxx
-------------------------------------
Xxx X. Xxxxxxxxx,
Chief Executive Officer
J.S.J. Capital III, Inc., a
Nevada Corporation
By: /s/ Xxxxx X. Xxxxxxx III
-------------------------------------
Xxxxx X. Xxxxxxx III,
Chief Executive Officer
8
