EXHIBIT 2.9
AGREEMENT AND
PLAN OF REORGANIZATION
DATED JUNE 4, 1996
BY AND BETWEEN
NETSOURCE INTERACTIVE
AND
TRANSPHERE INTERNATIONAL, INC.
TABLE OF CONTENTS
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Page
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1. Certain Definitions............................................ 1
1.1 "Code"................................................ 1
1.2 "Commission".......................................... 1
1.3 "Securities Act"...................................... 1
1.4 "Transaction Documents"............................... 1
2. Plan of Reorganization......................................... 2
2.1 The Merger............................................ 2
2.2 Conversion of Shares.................................. 2
2.3 The Closing........................................... 2
2.4 Effective Time........................................ 2
2.5 Tax Free Reorganization............................... 3
2.6 Restricted Securities................................. 3
3. Mutual Covenants............................................... 3
3.1 Due Diligence, Investigation, and Audits.............. 3
3.2 Regulatory Filings; Consents; Reasonable Efforts...... 3
3.3 Further Assurances.................................... 4
4. Closing Matters................................................ 4
4.1 Filing of Certificate of Merger....................... 4
5. Conditions to Transphere's Obligations......................... 4
5.1 NetSource Certificate of Incorporation................ 4
5.2 Date of Closing....................................... 4
5.3 Filing of Certificate of Merger....................... 4
6. Conditions to NetSource's Obligations.......................... 4
6.1 NetSource Certificate of Incorporation................ 4
6.2 Date of Closing....................................... 5
6.3 Filing of Certificate of Merger....................... 5
7. Termination of Agreement....................................... 5
7.1 Termination........................................... 5
7.2 Liability for Termination............................. 5
7.3 Certain Effects of Termination........................ 5
7.4 Remedies.............................................. 5
8. No Survival of Covenants and Agreements........................ 6
9. Miscellaneous.................................................. 6
9.1 Governing Laws........................................ 6
9.2 Binding upon Successors and Assigns................... 6
9.3 Severability.......................................... 6
i
9.4 Entire Agreement..................................... 6
9.5 Counterparts......................................... 7
9.6 Expenses............................................. 7
9.7 Amendment and Waivers................................ 7
9.8 Survival of Agreements............................... 7
9.9 No Waiver............................................ 7
9.10 Attorneys' Fees...................................... 7
9.11 Notices.............................................. 7
9.12 Time................................................. 8
9.13 Construction of Agreement............................ 8
9.14 No Joint Venture..................................... 8
9.15 Pronouns............................................. 8
9.16 Further Assurances................................... 8
9.17 Absence of Third Party Beneficiary Rights............ 9
EXHIBIT A CERTIFICATE OF MERGER........................................ 11
EXHIBIT B RESTATED CERTIFICATE OF INCORPORATION........................ 12
ii
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is entered
into this 4th day of June, 1996, by and between NetSource Interactive, a
Delaware corporation ("NetSource"), and Transphere International, Inc., a
California corporation ("Transphere").
RECITAL
WHEREAS, subject to and in accordance with the terms and conditions of
this Agreement and pursuant to the Certificate of Merger attached hereto as
Exhibit A ("Certificate of Merger"), the respective Board of Directors and
security holders of NetSource and Transphere have approved the merger of
Transphere with and into NetSource (the "Merger"), whereby all of the
outstanding shares of common stock of Transphere ("Transphere Stock") will be
converted into shares of common stock of NetSource ("NetSource Common Stock").
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a tax free reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, the parties hereto desire to set forth certain
representations, warranties and covenants made by each to the other as an
inducement to the consummation of the Merger.
AGREEMENT
NOW, THEREFORE, in reliance on the foregoing recitals and in and for
the consideration and mutual covenants set forth herein, the parties agree as
follows:
1. Certain Definitions.
1.1. "Code" shall mean the United States Internal Revenue
Code of 1986, as amended.
1.2. "Commission" shall mean the United States Securities
and Exchange Commission.
1.3. "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
1.4. "Transaction Documents" shall mean all documents or
agreements attached as an exhibit or schedule hereto, and set forth on the Table
of Contents.
2. Plan of Reorganization.
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2.1. The Merger. Subject to the terms and conditions of this
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Agreement and the Certificate of Merger, Transphere shall be merged with and
into NetSource in accordance with the applicable provisions of the laws of the
State of California and the State of Delaware, and with the terms and conditions
of this Agreement and the Certificate of Merger, so that:
(a) At the Effective Time, Transphere shall be merged
with and into NetSource. As a result of the Merger, the separate corporate
existence of Transphere shall cease and NetSource shall continue as the
surviving corporation (sometimes referred to herein as the "Surviving
Corporation") and shall succeed to and assume all of the rights and obligations
of NetSource in accordance with the laws of California and Delaware.
(b) The Certificate of Incorporation and Bylaws of
NetSource in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation and Bylaws, respectively, of the Surviving
Corporation after the Effective Time unless and until further amended as
provided by law.
(c) Subject to the terms of this Agreement, the
directors and officers of NetSource immediately prior to the Effective Time
shall be the directors and officers of the Surviving Corporation after the
Effective Time. Such directors and officers shall hold their position until the
election and qualification of their respective successors or until their tenure
is otherwise terminated in accordance with the Bylaws of the Surviving
Corporation.
2.2. Conversion of Shares. Each share of Transphere Stock,
--------------------
issued and outstanding immediately prior to the Effective Time, will be
exchanged for approximately 2,298.177 shares of fully paid and nonassessable
NetSource Common Stock pursuant to an Exchange Agreement entered into between
NetSource and the sole shareholder of Transphere on the date hereof.
2.3. The Closing. Subject to termination of this Agreement as
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provided in Section 7 below, the closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Xxxx Xxxx Xxxx
& Freidenrich, A Professional Corporation, 000 Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx, as soon as possible upon the satisfaction or waiver of all
conditions set forth in Section 5 and Section 6 hereof (the "Closing Date"), or
such other time and place as is mutually agreeable to the parties.
2.4. Effective Time. Simultaneously with the Closing, the
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Certificate of Merger shall be filed in the office of the Secretary of State of
the State of Delaware. The Merger shall become effective immediately upon the
filing of the Certificate of Merger with such office. The date and time of the
effectiveness of the Merger under the laws of Delaware is the "Effective Time."
2.
2.5. Tax Free Reorganization. The parties intend to adopt
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this Agreement as a tax-free plan of reorganization and to consummate the Merger
in accordance with the provisions of Section 368(a)(1)(A) of the Code. Each
party agrees that it will not take or assert any position on any tax return,
report or otherwise which is inconsistent with the qualification of the Merger
as a reorganization within the meaning of Section 368(a) of the Code. The
NetSource Common Stock issued in the Merger will be issued solely in exchange
for the Transphere Stock pursuant to this Agreement, and no other transaction
other than the Merger represents, provides for or is intended to be an
adjustment to the consideration paid for the Transphere Common Stock. Except for
cash paid in lieu of fractional shares, no consideration that could constitute
"other property" within the meaning of Section 356 of the Code is being paid by
NetSource for the Transphere Stock. In addition, NetSource represents now, and
as of the Closing Date, that it presently intends to continue Transphere's
historic business or use a significant portion of Transphere's business assets
in a business.
2.6. Restricted Securities. The NetSource Common Stock will
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be subject to the following restrictions
(a) restrictions imposed by applicable federal and
state securities laws;
(b) certificates representing NetSource Common Stock
will bear legends describing certain of the applicable restrictions on
transferability referred to in this Section.
3. Mutual Covenants.
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3.1. Due Diligence, Investigation, and Audits. At such time
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prior to the Closing as may be reasonably requested, each party shall make
available to the other party and the other party's employees, agents and
representatives all information concerning the operation, business and prospects
of such party as may be reasonably requested by the other party, including,
without limitation, making the working papers of such party's independent
certified public accountants available for inspection by the other party's
independent certified public accountants. Each party will cooperate with the
other party for the purpose of permitting the other party to discuss such
party's business and prospects with such party's customers, creditors, suppliers
and other persons having business dealings with such party, subject to
reasonable confidentiality obligations between the parties.
3.2. Regulatory Filings; Consents; Reasonable Efforts.
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Subject to the terms and conditions of this Agreement, Transphere and NetSource
shall use their respective best efforts to (i) make all necessary filings with
respect to the Merger and this Agreement under the Securities Act, and
applicable blue sky or similar securities laws and shall use all reasonable
efforts to obtain required approvals and clearances with respect thereto and
shall supply all additional information requested in connection therewith; (ii)
make merger notification or other appropriate filings with federal, state or
local governmental bodies or applicable foreign governmental agencies and shall
use all reasonable efforts to obtain required approvals and clearances with
respect thereto and shall supply all additional information requested in
connection therewith; and (iii) take, or cause to be taken, all
3.
appropriate action, and do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement.
3.3. Further Assurances. Prior to and following the Closing,
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each party agrees to cooperate fully with the other parties and to execute such
further instruments, documents and agreements and to give such further written
assurances, as may be reasonably requested by any other party to better evidence
and reflect the transactions described herein and contemplated hereby and to
carry into effect the intents and purposes of this Agreement.
4. Closing Matters.
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4.1. Filing of Certificate of Merger. On the date of the
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Closing, but not prior to the Closing, the Certificate of Merger shall be filed
with the offices of the Secretary of State of the State of Delaware and the
merger of Transphere with and into NetSource shall be consummated.
5. Conditions to Transphere's Obligations. Unless otherwise
--------------------------------------
provided below, Transphere's obligations to close the transactions contemplated
under this Agreement are subject to the fulfillment or satisfaction by the
Closing Date of each of the following conditions (any one or more of which may
be waived by Transphere, but only in a writing signed by Transphere):
5.1. NetSource Certificate of Incorporation. NetSource shall
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have amended and restated its Certificate of Incorporation in substantially the
form attached hereto as Exhibit B.
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5.2. Date of Closing. The Closing shall have occurred not
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later than June 30, 1996, or such later date as the parties may mutually agree.
5.3. Filing of Certificate of Merger. As of the Closing, the
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Certificate of Merger shall have been filed with the Secretary of State of the
State of Delaware.
6. Conditions to NetSource's Obligations. Unless otherwise
-------------------------------------
provided below, NetSource's obligations to close the transactions contemplated
under this Agreement are subject to the fulfillment or satisfaction by the
Closing Date of each of the following conditions (any one or more of which may
be waived by NetSource, but only in a writing signed by NetSource):
6.1. NetSource Certificate of Incorporation. NetSource shall
--------------------------------------
have amended and restated its Certificate of Incorporation in substantially the
form attached hereto as Exhibit B.
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4.
6.2. Date of Closing. The Closing shall have occurred not
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later than June 30, 1996, or such later date as the parties may mutually agree.
6.3. Filing of Certificate of Merger. As of the Closing, the
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Certificate of Merger shall have been filed with the Secretary of State of the
State of Delaware.
7. Termination of Agreement.
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7.1. Termination. This Agreement may be terminated at any
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time prior to the Closing by the mutual written consent of each of the parties
hereto. This Agreement may also be terminated and abandoned:
(a) By NetSource if any of the conditions precedent
to NetSource's obligations pursuant to Section 6 shall not have been fulfilled
at and as of the Closing.
(b) By Transphere if any of the conditions precedent
to Transphere's obligations pursuant to Section 5 above shall not have been
fulfilled at and as of the Closing.
(c) By either Transphere or NetSource, if the
Merger is not effected by June 30, 1996.
Any termination of this Agreement under this Section 7.1 shall be
effected by the delivery of written notice of the terminating party to the other
parties hereto.
7.2. Liability for Termination. Any termination of this
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Agreement pursuant to this Section shall be without further obligation or
liability upon any party in favor of any other party hereto. The provisions of
this Section 7.2 shall survive termination.
7.3. Certain Effects of Termination. In the event of the
------------------------------
termination of this Agreement by either Transphere or NetSource as provided in
Section 7.1 hereof, each party, if so requested by the other party, will return
promptly every document (other than documents publicly available) furnished to
it by the other party (or any subsidiary, division, associate or affiliate of
such other party) in connection with the transactions contemplated hereby,
whether so obtained before or after the execution of this Agreement, and any
copies thereof which may have been made, and will cause its representatives and
any representatives of financial institutions and investors and others to whom
such documents were furnished promptly to return such documents and any copies
thereof any of them may have made, or destroy such documents and cause its
representatives and such other representatives to destroy such documents, and
such party shall deliver a certificate executed by its president or vice
president stating to such effect.
7.4. Remedies. No party shall be limited to the termination
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right granted in Section 7.1 hereto by reason of the nonfulfillment of any
condition to such party's closing obligations but may, in the alternative, elect
to do one of the following:
(a) proceed to close despite the nonfulfillment of any
closing condition, it being understood that consummation of the transactions
contemplated hereby
5.
shall be deemed a waiver of any misrepresentation or breach of warranty or
covenant and of any party's rights and remedies with respect thereto to the
extent that the other party shall have actual knowledge of such
misrepresentation or breach and the Closing shall nonetheless take place; or
(b) decline to close and terminate this Agreement as
provided in Section 7.1 hereof.
8. No Survival of Covenants and Agreements. The representations,
---------------------------------------
warranties, covenants and agreements of the parties contained in Sections 3, 4,
5 and 6 of this Agreement shall terminate at and shall not survive the Closing
Date, except for covenants that by their own terms apply after the Closing Date.
9. Miscellaneous.
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9.1. Governing Laws. It is the intention of the parties
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hereto that the internal laws of the State of California (irrespective of its
choice of law principles) shall govern the validity of this Agreement, the
construction of its terms, and the interpretation and enforcement of the rights
and duties of the parties hereto.
9.2. Binding upon Successors and Assigns. Subject to, and
-----------------------------------
unless otherwise provided in, this Agreement, each and all of the covenants,
terms, provisions, and agreements contained herein shall be binding upon, and
inure to the benefit of, the permitted successors, executors, heirs,
representatives, administrators and assigns of the parties hereto.
9.3. Severability. If any provision of this Agreement, or the
------------
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall be interpreted so as best to reasonably
effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision.
9.4. Entire Agreement. This Agreement, the exhibits hereto,
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the documents referenced herein, and the exhibits thereto, constitute the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and thereof and supersede all prior and contemporaneous agreements
or understandings, inducements or conditions, express or implied, written or
oral, between the parties with respect hereto and thereto. The express terms
hereof control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.
6.
9.5. Counterparts. This Agreement may be executed in any
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number of counterparts, each of which shall be an original as against any party
whose signature appears thereon and all of which together shall constitute one
and the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as signatories.
9.6. Expenses. Except as provided to the contrary herein,
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each party shall pay all of its own costs and expenses incurred with respect to
the negotiation, execution and delivery of this Agreement, the exhibits hereto,
and the other Transaction Documents. If the Merger is consummated, all
investment banking, broker's and finder's fees incurred by Transphere and/or its
shareholders in connection with the Merger will become obligations of NetSource.
9.7. Amendment and Waivers. Any term or provision of this
---------------------
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to constitute
a waiver of any other default or any succeeding breach or default.
9.8. Survival of Agreements. All covenants, agreements,
----------------------
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby notwithstanding any investigation of the parties hereto and shall
terminate on the date one year after the Closing Date.
9.9. No Waiver. The failure of any party to enforce any of
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the provisions hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
9.10. Attorneys' Fees. Should suit be brought to enforce or
---------------
interpret any part of this Agreement, the prevailing party shall be entitled to
recover, as an element of the costs of suit and not as damages, reasonable
attorneys' fees to be fixed by the court (including without limitation, costs,
expenses and fees on any appeal). The prevailing party shall be the party
entitled to recover its costs of suit, regardless of whether such suit proceeds
to final judgment. A party not entitled to recover its costs shall not be
entitled to recover attorneys' fees. No sum for attorneys' fees shall be counted
in calculating the amount of a judgment for purposes of determining if a party
is entitled to recover costs or attorneys' fees.
9.11. Notices. Any notice provided for or permitted under
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this Agreement will be treated as having been given when delivered personally,
sent by confirmed telex or telecopy, sent by commercial overnight courier with
written verification of receipt, or mailed postage prepaid by certified or
registered mail, return receipt requested, to the party to be notified, at the
address set forth below, or at such other place of which the other party has
been notified in accordance with the provisions of this Section 9.11
7.
Transphere: Transphere International, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
NetSource: NetSource Interactive
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
With copy to: Xxxx Xxxx Xxxx & Freidenrich
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Such notice will be treated as having been received upon actual receipt.
9.12. Time. Time is of the essence of this Agreement.
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9.13. Construction of Agreement. This Agreement has been
-------------------------
negotiated by the respective parties hereto and their attorneys and the language
hereof shall not be construed for or against any party. The titles and headings
herein are for reference purposes only and shall not in any manner limit the
construction of this Agreement which shall be considered as a whole.
9.14. No Joint Venture. Nothing contained in this Agreement
----------------
shall be deemed or construed as creating a joint venture or partnership between
any of the parties hereto. No party is by virtue of this Agreement authorized as
an agent, employee or legal representative of any other party. No party shall
have the power to control the activities and operations of any other and their
status is, and at all times, will continue to be, that of independent
contractors with respect to each other. No party shall have any power or
authority to bind or commit any other. No party shall hold itself out as having
any authority or relationship in contravention of this Section 9.14.
9.15. Pronouns. All pronouns and any variations thereof shall
--------
be deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the person, persons, entity or entities may require.
9.16. Further Assurances. Each party agrees to cooperate
------------------
fully with the other parties and to execute such further instruments, documents
and agreements and to give such further written assurances, as may be reasonably
requested by any other party to better evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
8.
9.17. Absence of Third Party Beneficiary Rights. No
-----------------------------------------
provisions of this Agreement are intended, nor shall be interpreted, to provide
or create any third party beneficiary rights or any other rights of any kind in
any client, customer, affiliate, stockholder, partner of any party hereto or any
other person or entity except employees and shareholders of Transphere
specifically referred to herein, and, except as so provided, all provisions
hereof shall be personal solely between the parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
NETSOURCE INTERACTIVE TRANSPHERE INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxxxx
---------------------------- ----------------------------
Title: President Title: President
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9.
EXHIBIT A
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CERTIFICATE OF MERGER
OF TRANSPHERE INTERNATIONAL, INC.
(a California corporation)
INTO
NETSOURCE INTERACTIVE SERVICES, INC.
(a Delaware corporation)
The undersigned corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, does hereby certify:
First: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
Name State of Incorporation
---- ----------------------
Transphere International, Inc. California
NetSource Interactive Services, Inc. Delaware
Second: That an Agreement and Plan of Reorganization dated as of June 4,
1996, between NetSource Interactive Services, Inc. and Transphere International,
Inc. has been approved, adopted, certified, executed and acknowledged by each of
the constituent corporations in accordance with the requirements of Section 252
of the General Corporation Law of the State of Delaware and Section 1201 of the
California General Corporate Law.
Third: That the name of the surviving corporation of the merger is
NetSource Interactive (the "Surviving Corporation").
Fourth: That the Certificate of Incorporation of NetSource Interactive
Services, Inc. shall, as of the effective time of the merger, be the Certificate
of Incorporation, as amended, of the Surviving Corporation.
Fifth: That the executed Agreement and Plan of Reorganization is on file
at the principal place of business of the Surviving Corporation. The address of
said principal place of business is 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000.
Sixth: That a copy of the Agreement and Plan of Reorganization will be
furnished by the Surviving Corporation upon request and without charge to any
stockholder of any constituent corporation.
Seventh: The authorized capital stock of Transphere International, Inc. is
4,000 shares of Common Stock, no par value.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed by its duly authorized officer this 4th day of June, 1996.
NETSOURCE INTERACTIVE
SERVICES, INC.
(a Delaware corporation)
By: /s/ Xxxxxxx Xxxxxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxxxxx
10.
EXHIBIT B
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RESTATED CERTIFICATE OF INCORPORATION
[intentionally omitted]
11.
