AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("PLAN" or "MERGER AGREEMENT") dated as
of September 30, 1996, between WORLDLINK ACQUISITION CORP., a Georgia
corporation ("NEWCO"), and WORLD LINK COMMUNICATIONS, INC., a Georgia
corporation ("WORLDLINK"). Newco and Worldlink are hereinafter collectively
referred to as the "CONSTITUENT CORPORATIONS."
RECITALS:
WHEREAS, Newco is a corporation duly organized and existing under the laws
of the State of Georgia, having filed its Articles of Incorporation in the
office of the Secretary of State of Georgia on August 20, 1996, and having total
authorized capital stock of 1,000 shares of common stock, $.01 par value ("NEWCO
STOCK"), of which 1,000 shares are issued and outstanding and owned by Charter
Communications International, Inc., a Nevada corporation ("CHARTER"); and
WHEREAS, Worldlink is a corporation duly organized and existing under the
laws of the State of Georgia, having filed its Articles of Incorporation in the
office of the Secretary of State of Georgia on June 10, 1992, and having an
authorized capital stock of (i) 100,000 shares of common stock having no par
value ("WORLDLINK COMMON STOCK"), of which 1,016 shares are issued and
outstanding.
WHEREAS, the respective Boards of Directors of the Constituent Corporations
deem it advisable and in the best interests of the Constituent Corporations and
their shareholders that Newco be merged with and into Worldlink, which shall be
the surviving corporation, as authorized by the statutes of the State of Georgia
and pursuant to the terms and conditions hereinafter set forth, and each such
Board has duly approved this Agreement and Plan of Merger;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and for the purpose of setting forth the terms
of the merger (the "MERGER") provided by this Merger Agreement, the mode of
carrying the same into effect and such other details and provisions as are
deemed necessary or desirable, the parties hereto have agreed and do hereby
agree, subject to the approval or adoption of this Merger Agreement by the
requisite vote of the shareholders of each Constituent Corporation, and subject
to the conditions hereinafter set forth, as follows:
ARTICLE I
THE MERGER
SECTION 1.01. THE MERGER. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with Georgia Law, at
the Effective Time (as defined in Section 1.02), Newco shall be merged with and
into Worldlink. As a result of the Merger, the separate corporate existence of
Newco shall cease and Worldlink shall continue as the surviving corporation in
the Merger (the "SURVIVING CORPORATION"). The name of the Surviving Corporation
shall be "Worldlink Communications, Inc."
SECTION 1.02. EFFECTIVE TIME. As promptly as practicable after the
approval hereof by the shareholders of each Constituent Corporation and the
execution and delivery of this Agreement by each of the parties hereto, the
parties hereto shall cause the Merger to be consummated by filing of articles of
merger (the "ARTICLES OF MERGER") with the Secretary of State of the State of
Georgia, in such form as required by, and executed in accordance with the
relevant provisions of, Georgia Law (the date and time of such filing being the
"EFFECTIVE TIME").
SECTION 1.03. EFFECT OF THE MERGER. At the Effective Time, the
effect of the Merger
shall be as provided in the applicable provisions of Georgia Law. Without
limiting the generality of the foregoing, and subject thereto, at the
Effective Time, except as otherwise provided herein, all the property,
rights, privileges, powers and franchises of Newco and Worldlink shall vest
in the Surviving Corporation, and all debts, liabilities and duties of Newco
and Worldlink shall become the debts, liabilities and duties of the Surviving
Corporation.
SECTION 1.04. ARTICLES OF INCORPORATION; BYLAWS. At the Effective
Time, the Articles of Incorporation and the Bylaws of Worldlink, as in effect
immediately prior to the Effective Time, shall be the Articles of Incorporation
and the Bylaws of the Surviving Corporation; PROVIDED THAT Articles I and II of
the Articles of Incorporation of Worldlink shall be amended as follows to
reflect that, after the Merger, the name of Worldlink shall be changed to
"Worldlink Communications, Inc." and the capitalization of Worldlink shall be
1,000 shares of Common Stock issued to and outstanding in the name of Charter:
I.
The name of the corporation is:
WorldLink Communications, Inc.
II.
"The total number of shares of all classes of stock which the
corporation shall be authorized to issue is one thousand (1,000)
shares of common stock, $.01 par value per share."
SECTION 1.05. DIRECTORS AND OFFICERS. The directors of Worldlink
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation, and the officers of
Worldlink immediately prior to the Effective Time shall be the officers of the
Surviving Corporation, in each case until their respective successors are duly
elected or appointed and qualified.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.01. CONVERSION OF SECURITIES. At the Effective Time, by
virtue of the Merger and without any action on the part of Newco, Worldlink or
the holders of any of the following securities:
(a) all shares of Worldlink Common Stock issued and outstanding
immediately prior to the Effective Time, excluding any treasury shares held by
Worldlink and Dissenting Shares (as defined in Section 2.04), if any, and all
warrants and options of Worldlink representing the right to purchase Worldlink
Common Stock, if any, outstanding immediately prior to the Effective Time
("WORLDLINK WARRANT"), shall be converted, on a pro rata basis, into the right
to receive one million eight hundred and fifty (1,850,000) shares of fully paid,
nonassessable shares of common stock, par value $.00001 per share, of Charter
("CHARTER COMMON STOCK"), with Worldlink Common Stock being converted into
Charter Common Stock and Worldlink Warrants being converted into warrant to
purchase Charter Common Stock ("CHARTER WARRANT"); on a per share or per warrant
basis, such conversion shall be calculated as set forth in this Subsection in
accordance with the Common Stock Exchange Ratio (as defined herein) as follows:
(i) Each share of common stock, $.001 par value per share, of
Worldlink Common Stock issued and outstanding immediately prior to the
Effective Time, excluding any treasury shares held by Worldlink, shares
held by Charter and Dissenting Shares (as defined in Section 2.04), if any,
shall be converted into the right to receive 1,820.866 shares (the "COMMON
STOCK EXCHANGE RATIO") of fully paid, nonassessable shares of common stock,
par value $.00001 per share, of Charter Common Stock; such Common Stock
Exchange Ratio being determined by dividing 1,850,000 shares of Charter
Common Stock by the total number of outstanding shares of Worldlink Common
Stock issued and outstanding or represented by an Worldlink Warrant
outstanding immediately prior to the Effective Time, which number equals
1,016; such Common Stock Exchange Ratio shall be modified as necessary to
properly effectuate the conversion as set forth in this Section.
(ii) Each Worldlink Warrant outstanding immediately prior to the
Effective Time ("WORLDLINK WARRANTS") shall be converted into a Charter
Warrant exercisable for that number of shares of Charter Common Stock equal
to the product of the number of shares of Worldlink Common Stock covered by
Worldlink Warrants immediately prior to the Effective Time multiplied by
the Common Stock Exchange Ratio rounded up to the nearest whole number of
shares of Charter Common Stock, and the per share exercise price for the
shares of Charter Common Stock. The date of grant of a Charter Warrant
issued in exchange for a Worldlink Warrant shall be deemed to be the date
on which such Worldlink Warrant was originally granted. Charter Warrants
issued in exchange for Worldlink Warrants pursuant hereto shall have a per
share exercise price equal to the total of the exercise price for the
Worldlink Warrant multiplied by the total number of shares of Worldlink
Common Stock covered by the Worldlink Warrant divided by the total number
of shares of Charter Common Stock covered by the Charter Warrant issued in
exchange for such Worldlink Warrant. Charter Warrants issued in exchange
for Worldlink Warrants pursuant hereto shall have the same vesting dates
and shall vest on such dates in the same proportion of the total as the
Worldlink Warrants exchanged for such Charter Warrants.
(b) All shares of Worldlink Stock and each Worldlink Warrant shall no
longer be outstanding and shall automatically be canceled and retired and shall
cease to exist, and each certificate previously evidencing any such Worldlink
Stock and each Worldlink Warrant shall thereafter represent the right to receive
the Merger Consideration (as defined in Section 2.02(b) below). The holders of
such certificates previously evidencing such shares of Worldlink Stock
outstanding immediately prior to the Effective Time shall cease to have any
rights with respect to such shares of Worldlink Stock, except as otherwise
provided herein or by law. Such certificates previously evidencing shares of
Worldlink Common Stock shall be exchanged for certificates evidencing shares of
Charter Common Stock issued in consideration therefor in accordance with the
allocation procedures of this Section 2.01 and upon the surrender of such
certificates in accordance with the provisions of Section 2.02. Each Worldlink
Warrant shall be exchanged for a Charter Warrant in accordance with the
provisions of Section 2.02.
(c) Each share of Worldlink Stock held in the treasury of Worldlink
and each share of Worldlink Stock owned by Charter or any direct or indirect
wholly owned subsidiary of Charter or of Worldlink immediately prior to the
Effective Time shall be canceled and extinguished without any conversion thereof
and no payment shall be made with respect thereto.
SECTION 2.02. EXCHANGE OF CERTIFICATES; WARRANTS. (a) EXCHANGE
AGENT. As of the date hereof, Newco has deposited, or caused to be deposited,
with Corporate Stock Transfer (the "EXCHANGE AGENT"), for the benefit of the
holders of shares of Worldlink Stock, for exchange in accordance with this
Article II through the Exchange Agent (i) certificates evidencing such number of
shares of Charter Common Stock equal to the Common Stock Exchange Ratio
multiplied by the number of shares of Worldlink Common Stock; and (ii) Charter
Warrants evidencing the right to
purchase such number of shares of Charter Common Stock equal to the Common
Stock Exchange Ratio multiplied by the number of shares of Worldlink Common
Stock represented by Worldlink Warrants at an exercise price determined in
accordance with Section 2.01(c). The Exchange Agent shall, pursuant to
irrevocable instructions, deliver the Charter Stock and Charter Warrants to
the holders of Worldlink Stock and Worldlink Warrants.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable after the
Effective Time, Worldlink will instruct the Exchange Agent to mail to each
holder of record of Worldlink Stock or Worldlink Warrants which immediately
prior to the Effective Time evidenced outstanding shares of Worldlink Stock
(other than Dissenting Shares) or outstanding Worldlink Warrants (such stock
certificates and documents evidencing Worldlink Warrants being collectively, the
"CERTIFICATES"), (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon proper delivery of the Certificates to the Exchange Agent and shall be
in such form and have such other provisions as Worldlink may reasonably specify)
and (ii) instructions for use in effecting the surrender of the Certificates in
exchange for certificates evidencing shares of Charter Stock or Charter
Warrants. Upon surrender of a Certificate for cancellation to the Exchange
Agent together with such letter of transmittal, duly executed, and such other
customary documents as may be required pursuant to such instructions, the holder
of such Certificate shall be entitled to receive in exchange therefor (i)
certificates evidencing that number of shares of Charter Common Stock which such
holder has the right to receive in respect of the shares of Worldlink Common
Stock, and (ii) a Charter Warrant evidencing the right to purchase that number
of shares of Charter Common Stock which such holder has the right to receive in
respect of Worldlink Warrants in each case in accordance with Section 2.01 (such
Charter Common Stock and Charter Warrants being collectively, the "MERGER
CONSIDERATION") and the Certificates so surrendered shall forthwith be canceled.
In the event of a transfer of ownership of shares of Worldlink Stock or a
Worldlink Warrant which transfer is not registered in the transfer records of
Worldlink, a certificate evidencing the proper number of shares of Charter
Common Stock or a Charter Warrant, as appropriate, may be issued in accordance
with this Article II to a transferee if the Certificate evidencing such
Worldlink Common Stock or Worldlink Warrant is presented to the Exchange Agent,
accompanied by all documents required to evidence and effect such transfer and
by evidence that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated in this Section 2.02, each Certificate shall be
deemed at any time after the Effective Time to evidence only the right to
receive, upon such surrender, the Merger Consideration.
(c) NO FURTHER RIGHTS IN WORLDLINK COMMON STOCK OR WORLDLINK
WARRANTS. All Charter Common Stock and Charter Warrants issued upon conversion
of Worldlink Common Stock or Worldlink Warrants in accordance with the terms
hereof shall be deemed to have been issued or paid in full satisfaction of all
rights pertaining to such Worldlink Common Stock and Worldlink Warrants.
SECTION 2.03. STOCK TRANSFER BOOKS. At the Effective Time, the stock
transfer books of Worldlink shall be closed and there shall be no further
registration of transfers of shares of Worldlink Stock thereafter on the records
of Worldlink. On or after the Effective Time, any Certificates presented to the
Exchange Agent for any reason shall be converted into the Merger Consideration.
SECTION 2.04. DISSENTING SHARES. If required under Georgia Law,
notwithstanding any other provisions of this Agreement to the contrary, shares
of Worldlink Stock that are outstanding immediately prior to the Effective Time
and which are held by stockholders who shall have not voted in favor of the
Merger or consented thereto in writing and who shall have demanded properly in
writing appraisal for such shares in accordance with Articles 14-2-1301 through
14-2-1332 (collectively, the "DISSENTING SHARES") shall not be converted into or
represent the right to receive the Merger Consideration. Such stockholders
shall be entitled to receive payment of the appraised value of such shares of
Worldlink Stock held by them in accordance with the provisions of such sections
of Georgia Law, except that all Dissenting Shares held by stockholders who shall
have failed to perfect or who
effectively shall have withdrawn or lost their rights to appraisal of such
shares of Worldlink Stock under such sections of Georgia Law shall thereupon
be deemed to have been converted into and to have become exchangeable, as of
the Effective Time, for the right to receive shares of Charter Common Stock,
upon surrender, in the manner provided in Section 2.02, of the certificate or
certificates that formerly evidenced such shares of Worldlink Stock.
ARTICLE III
APPROVAL AND EFFECTIVE TIME OF THE MERGER
The Merger shall become effective when the Articles of Merger are filed and
recorded in the office of the Secretary of State of the State of Georgia.
ARTICLE IV
MISCELLANEOUS PROVISIONS
(a) For the convenience of the parties, any number of counterparts
hereof may be executed, and each such counterpart shall be deemed to be an
original instrument.
(b) It is the intention of the parties that the internal laws, and
not the laws of conflicts, of the State of Georgia shall govern the
enforceability and validity of this Merger Agreement, the construction of
its terms and the interpretation of the rights and duties of the parties;
PROVIDED, HOWEVER, that with respect to matters of law concerning the
internal affairs of any entity that is a party to or the subject of this
Merger Agreement the law of the jurisdiction of organization of such entity
shall govern.
(c) This Merger Agreement may not be altered or amended except
pursuant to an instrument in writing signed on behalf of the parties
hereto.
IN WITNESS WHEREOF, Worldlink has caused this Merger Agreement to be signed
by its President and attested by its Secretary and its corporate seal to be
affixed hereto pursuant to authorization contained in a resolution adopted by
its Board of Directors approving this Merger Agreement, and Newco has caused
this Merger Agreement to be signed by its President and attested by its
Secretary and its corporate seal to be affixed hereto pursuant to authorization
contained in a resolution adopted by its Board of Directors approving this
Merger Agreement, all on the date first above written.
[Signature pages to follow]
WORLDLINK COMMUNICATIONS,
INC.
ATTEST:
By /s/ Xxxxxxxx Xxxx By /s/ J. Xxxx Xxxx
------------------------------ ----------------------------------
Xxxxxxxx Xxxx J. Xxxx Xxxx,
ATTEST: WORLDLINK ACQUISITION CORP.
By /s/ Xxxx Xxxxxxxx By /s/ Xxxxx X. Xxxxx
------------------------------ ----------------------------------
Xxxx Xxxxxxxx, Secretary Xxxxx X. Xxxxx, President
ARTICLES OF MERGER
OF
WORLDLINK ACQUISITION CORP. AND
WORLD LINK COMMUNICATIONS INC.
The undersigned officer of the Surviving Corporation to a Plan of Merger
submits the following Articles of Merger pursuant to the provisions of the
Georgia Business Corporation Code ("GBCC").
ARTICLE I
NAME
The name and place of incorporation of each constituent corporation is:
A. WORLDLINK ACQUISITION CORP., a Georgia corporation (the "DISAPPEARING
CORPORATION");
B. WORLD LINK COMMUNICATIONS, INC., a Georgia corporation (the "SURVIVING
CORPORATION").
ARTICLE II
ADOPTION OF THE PLAN OF MERGER
The respective Boards of Directors of the Surviving Corporation and the
Disappearing Corporation have duly and validly adopted the Plan of Merger,
containing the information required by Article 14-2-1101 et seq. of the GBCC
which has been adopted by the board of directors of each corporation that is a
party to the merger. Attached hereto and incorporated herein for all purposes
is a true and correct copy of the Plan of Merger.
ARTICLE III
OUTSTANDING STOCK
On the date of notice of the special meeting called to consider the Plan of
Merger, there were outstanding shares of stock in the constituent corporations
the numbers and designations of which are as follows:
A. The Surviving Corporation had One Thousand and Sixteen (1,016)
outstanding shares of common stock having no par value per share, each share
being entitled to one (1) vote for a total of One Thousand and Sixteen (1,016)
votes entitled to be cast for or against the Plan of Merger;
B. The Disappearing Corporation had One Thousand (1,000) outstanding
shares of common stock, par value $.01 per share, each share being entitled to
one (1) vote for a total of One Thousand (1,000) votes entitled to be cast for
or against the Plan of Merger.
ARTICLE IV
STOCKHOLDER APPROVAL
The Plan of Merger was duly submitted to the stockholders of the Surviving
Corporation, in accordance with GBCC, and the stockholders of the Disappearing
Corporation in accordance with the GBCC, and approved thereby. The stockholders
of the Surviving Corporation cast One Thousand and Sixteen (1,016) in favor and
no (0) votes against the Plan of Merger and the stockholders of the Disappearing
Corporation cast One Thousand (1,000) votes in favor and no (0) votes against
the Plan of Merger which votes cast in favor thereof are of a sufficient number
for the approval of the Plan of Merger by the constituent corporations.
ARTICLE V
AMENDMENTS TO THE ARTICLES OF INCORPORATION
OF THE SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation shall continue
as the Articles of Incorporation of the Surviving Corporation in all respects;
except, that on the effective date of the Merger, Articles I and II of the
Articles of Incorporation of the Surviving Corporation shall be amended to read
as follows:
I.
The name of the corporation is:
WorldLink Communications, Inc.
II.
"The total number of shares of all classes of stock which the
corporation shall be authorized to issue is one thousand (1,000) shares of
common stock, $.01 par value per share."
ARTICLE VI
PLAN OF MERGER
A. The entire Plan of Merger is on file at the Surviving Corporation's
principal place of business at 0000 Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000.
B. A copy of the Plan of Merger shall be furnished, on request and
without cost, to any stockholder of a corporation which is a party to the
merger.
ARTICLE VI
EFFECTIVE DATE
The effective date of the Plan of Merger shall be the date when these
Articles of Merger are filed and recorded.
IN WITNESS WHEREOF, the undersigned President and Secretary of the
Surviving Corporation, execute these Articles of Merger and verify that the
statements contained herein are true and complete and are the act and deed of
the constituent corporations this the 30th day of September, 1996.
WORLDLINK COMMUNICATIONS
INC.
/s/ J. Xxxx Xxxx
--------------------------------------
J. Xxxx Xxxx,
