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EXHIBIT 10.13
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of the 26th day of February, 1999
between OneSource Information Services, Inc., a corporation organized under the
laws of the State of Delaware ("SERVICES"), and OneSource Holding Corporation, a
corporation organized under the laws of the State of Delaware ("HOLDING"). The
two corporations are hereinafter sometimes called the "CONSTITUENT
CORPORATIONS". Services is hereinafter also sometimes referred to as the "MERGED
CORPORATION", and Holding is hereinafter also sometimes referred to as the
"SURVIVING CORPORATION".
WITNESSETH
WHEREAS, pursuant to Section 251 of the Delaware General Corporation Law
(the "DELAWARE CODE" the Constituent Corporations deem it advisable and
generally to the welfare of the Constituent Corporations that Services be merged
with and into Holding under the terms and conditions hereinafter set forth, such
merger to be effected pursuant to the statute of the State of Delaware in a
transaction qualifying as a liquidation within the meaning of Sections 332 and
337 of the Internal Revenue Code of 1986, as amended; and
WHEREAS, Services by its Certificate of Incorporation has an authorized
capital stock of 100 shares of Common Stock, $.01 par value per share, of which
100 shares of such Common Stock are now issued and outstanding, and such 100
shares of issued and outstanding Common Stock shall be canceled on the effective
date of the merger; and
WHEREAS, Holding by its Certificate of Incorporation has an authorized
capital stock of 6,500,000 shares of Common Stock, $.01 par value per share, of
which 3,292,192 shares of such Common Stock are now issued and outstanding and
500,000 shares of Class P Common Stock, $.01 par value per share, of which
354,200 shares of such Class P Common Stock are now issued and outstanding; and
WHEREAS, the registered office of Services in the State of Delaware is
located at 00 Xxxxxxxxx Xxxxxx, Xxxxx X-000, Xxxxx Xxxxxxxx 00000; and the
registered office of Holding in the State of Delaware is located at 00 Xxxxxxxxx
Xxxxxx, Xxxxx X-000, Xxxxx Xxxxxxxx 00000; and
WHEREAS, this Agreement and Plan of Merger was duly approved and adopted
by the Board of Directors of each of the Constituent Corporations and by the
written consent of at least a majority of the stockholders entitled to vote on
this Agreement, in accordance with Sections 228 and 251 of the Delaware Code.
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NOW, THEREFORE, the Constituent Corporations, parties to this Agreement
and Plan of Merger, in consideration of the mutual covenants, agreements and
provisions hereinafter contained, do hereby prescribe the terms and conditions
of such merger and mode of carrying the same into effect as follows:
FIRST: Holding hereby merges into itself Services, and Services shall be
and hereby is merged into Holding, which shall be the Surviving Corporation. On
the effective date of the merger (the "MERGER") provided for in this Agreement
and Plan of Merger, the separate existence of Services shall cease in accordance
with applicable law.
SECOND: The Certificate of Incorporation of Holding as in effect on the
date of the Merger provided for in this Agreement and Plan of Merger, in
substantially the same form as attached hereto as EXHIBIT A shall continue in
full force and effect as the Certificate of Incorporation of the Surviving
Corporation except as provided herein until the same shall be altered, amended
or repealed as provided therein or in accordance with applicable law.
THIRD: The effect of the Merger on the capital stock of the Merged
Corporation and the Surviving Corporation shall be as follows:
(a) The one hundred (100) shares of Common Stock of the Merged
Corporation, which are issued and outstanding on the date hereof shall, without
any further action on the part of anyone, be canceled on and as of the effective
date of the Merger.
(b) The outstanding shares of capital stock of the Surviving
Corporation shall be unaltered.
(c) After the effective date of the Merger, each holder of a
certificate or certificates which theretofore represented shares of Common Stock
of the Merged Corporation shall cease to have any rights as a stockholder of the
Merged Corporation except as are expressly reserved to such stockholder by
statute. After the effective date of the Merger, each holder of any outstanding
certificate or certificates representing shares of Common Stock of the Merged
Corporation shall surrender the same to the Merged Corporation for cancellation.
The certificates representing the outstanding shares of the capital stock of the
Merged Corporation to be canceled, as provided herein, will be treated by the
Surviving Corporation as of the effective date of the Merger as null and void
for all corporate purposes and will be deemed canceled.
FOURTH: The terms and conditions of the Merger are as follows:
(a) The By-laws of the Merged Corporation as they shall exist on
the effective date of the Merger shall become on the effective date of the
Merger and shall remain the By-laws of the Surviving Corporation until the same
shall be altered, amended and repealed as therein provided or in accordance with
law.
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(b) At and after the effective date of the Merger, the directors
of the Merged Corporation shall become the directors of the Surviving
Corporation and the officers of the Merged Corporation shall become the officers
of the Surviving Corporation. Such directors and officers shall continue in
office and thereafter each shall serve until the next annual meeting of
stockholders or meeting of directors, respectively, and until their successors
shall have been duly elected and qualified.
(c) At the effective date of the merger, and as set forth in its
Certificate of Incorporation, the name of the Surviving Corporation shall be
changed to "OneSource Information Services, Inc."
(d) At and after the effective date of the Merger, the Surviving
Corporation shall succeed to and possess, without further act or deed, all the
rights, privileges, obligations, powers and franchises, both public and private,
and all of the property, real, personal and mixed, of each of the Constituent
Corporations; all debts due to either of the Constituent Corporations on
whatever account, as well as for stock subscriptions, shall be vested in the
Surviving Corporation; all claims, demands, property, rights, privileges, powers
and franchises and every other interest of either of the Constituent
Corporations shall be as effectively the property of the Surviving Corporation
as they were of either of the respective Constituent Corporations; the title to
any real estate vested by deed or otherwise in either of the Constituent
Corporations shall not revert or be in any way impaired by reason of the Merger,
but shall be vested in the Surviving Corporation; the title to any bank accounts
of either of the Constituent Corporations shall not revert or be in any way
impaired by reason of the Merger, but shall be vested in the Surviving
Corporation; all rights of creditors and all liens upon any property of either
of the Constituent Corporations shall be preserved unimpaired; all debts,
liabilities and duties of the respective Constituent Corporations shall
thenceforth attach to the Surviving Corporation and may be enforced against it
to the same extent as if such debts, liabilities and duties had been incurred or
contracted by it; and the Surviving Corporation shall indemnify and hold
harmless the officers and directors of each of the Constituent Corporations
against all such debts, liabilities and duties and against all claims and
demands arising out of the Merger.
(e) As and when requested by the Surviving Corporation or by its
successors or assigns, the Merged Corporation will execute and deliver or cause
to be executed and delivered all such deeds and instruments and will take or
cause to be taken all such further action as the Surviving Corporation may deem
necessary or desirable in order to vest in and confirm to the Surviving
Corporation title to and possession of any property of either of the Constituent
Corporations acquired by the Surviving Corporation by reason or as a result of
the Merger herein provided for and otherwise to carry out the intent and
purposes hereof, and the officers and directors of the Merged Corporation and
the officers and directors of the Surviving Corporation are fully authorized in
the name of the Merged Corporation or otherwise to take any and all such action.
(f) The Merged Corporation and the Surviving Corporation hereby
agree that the Surviving Corporation will prepare and file specified employer
tax returns and employee
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information returns in accordance with the method described in Revenue Procedure
96-60, 1996-2 C.B. 339, Section 5.
(g) This Agreement and Plan of Merger has been submitted to the
stockholders of each of the Constituent Corporations as and to the extent
provided by law. The Merger shall take effect when any and all documents or
instruments necessary to perfect the Merger, pursuant to the requirements of the
Delaware Code, are accepted for filing by the appropriate office of the State of
Delaware.
(h) This Agreement and Plan of Merger may be terminated or
abandoned by (i) either Constituent Corporation, by written action of its
President at any time prior to its adoption by the stockholders of both of the
Constituent Corporations as and to the extent provided by law, or (ii) the
mutual consent of the Constituent Corporations, by written action of their
respective Presidents, at any time after such adoption by such stockholders and
prior to the effective date of the Merger for any reason or for no reason. In
the event of such termination or abandonment, this Agreement and Plan of Merger
shall become wholly void and of no effect and there shall be no further
liability or obligation hereunder on the part of either of the Constituent
Corporations or of their Board of Directors or stockholders.
(i) This Agreement and Plan of Merger constitutes a Plan of
Liquidation under the Internal Revenue Code, Sections 332 and 337, as well as a
Plan of Merger, to be carried out in the manner, on the terms and subject to the
conditions herein set forth.
(j) Within thirty (30) days after the adoption of this Plan of
Liquidation, the Merged Corporation will file a Form 966: "Corporation
Dissolution or Liquidation" and a certified copy of the resolution or plan of
liquidation with the Internal Revenue Service Center where the federal income
tax return of the Merged Corporation is filed. The Merged Corporation will also
file its final federal income tax return with the Internal Revenue Service on or
before the fifteenth (15th) day of the third month following the date of the
final distribution of its assets and the satisfaction of all its remaining
liabilities.
(k) The Surviving Corporation will file its 1999 federal income
tax return, and any other taxable year in which a distribution is received from
the Merged Corporation, a complete statement of all facts pertinent to the
nonrecognition of gain or loss from all distributions received from the Merged
Corporation as a result of the Plan of Liquidation. Such statement shall
include: (1) a copy of the plan of complete liquidation, and of the resolutions
under which the plan was adopted and the liquidation was authorized, together
with a statement under oath showing in detail all transactions incident to, or
pursuant to, the plan; (2) a list of all properties received upon the
distribution, showing the cost or other basis of such properties to the Merged
Corporation and the fair market value of such properties on the date of
distribution; (3) a statement of any indebtedness of the Merged Corporation to
the Surviving Corporation on the date the Plan of Liquidation was adopted and on
the date of the first liquidating distribution and, if any such indebtedness was
acquired at less than face value, the cost thereof to the Surviving Corporation;
and (4) a statement as to the Surviving Corporation's ownership of all classes
of
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stock of the Merged Corporation (showing as to each class the number of shares
and percentage owned and the voting power of each share) as of the date of
adoption of the Plan of Liquidation and at all times since, to and including the
date of distribution, and the cost or other basis of such stock and the date or
dates on which acquired.
(l) All corporate acts, plans, policies, approvals and
authorizations of the Merged Corporation, its stockholders, Board of Directors,
committees elected or appointed by the Board of Directors, officers and agents,
which were valid and effective immediately prior to the effective date of the
Merger, shall be taken for all purposes as the acts, plans, policies, approvals
and authorizations of the Surviving Corporation and shall be effective and
binding thereon as they were on the Merged Corporation. The employees of the
Merged Corporation shall become the employees of the Surviving Corporation and
continue to be entitled to the same rights and benefits they enjoyed as
employees of the Merged Corporation.
(m) From the effective date of the Merger, the officers and
directors of the Surviving Corporation are hereby authorized in the name of the
corporations that were the Constituent Corporations to execute, acknowledge and
deliver all instruments and to do all things as may be necessary or desirable to
vest in the Surviving Corporation any property or rights of either of the
Constituent Corporations or to carry out the purposes of this Agreement and Plan
of Merger.
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IN WITNESS WHEREOF, the parties to this Agreement and Plan of Merger,
pursuant to the approval and authority duly given by resolutions adopted by
their respective Boards of Directors, have caused this Agreement and Plan of
Merger to be executed by the President and attested by the Secretary of each
party hereto.
ONESOURCE HOLDING CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: President
ATTEST:
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Secretary
ONESOURCE INFORMATION SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
ATTEST:
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
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EXHIBIT A
CERTIFICATE OF INCORPORATION OF ONESOURCE HOLDING CORPORATION
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