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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of the 30th day of September, 1999, by and between WORLD
COMMERCE ONLINE, INC., a Nevada corporation ("WCO-Nevada"), and WORLD COMMERCE
ONLINE, INC., a Delaware corporation ("WCO-Delaware" or the "Surviving
Corporation" and collectively with WCO-Nevada, the "Corporations"), with
WCO-Nevada merging with and into WCO-Delaware, such that the separate existence
of WCO-Nevada shall cease and WCO-Delaware shall continue as the surviving
corporation (the "Merger").
R E C I T A L S:
WHEREAS, the Boards of Directors and the stockholders of the
Corporations deem it advisable and in the best interests of the Corporations and
stockholders to merge the Corporations; and
WHEREAS, it is the intention of the parties hereto that the Merger
shall constitute a tax-free reorganization, as defined in Section 368 of the
Internal Revenue Code of 1986, as amended, and that this Agreement and Plan of
Merger shall also constitute a Plan of Reorganization.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, being thereunto duly entered into by WCO-Nevada
and approved by a resolution adopted by its Board of Directors on September 30,
1999, and being duly entered into by WCO-Delaware and approved by a resolution
adopted by its Board of Directors as of September 30, 1999, this Agreement and
Plan of Merger and the terms and conditions thereof and the mode of carrying the
same into effect, are hereby determined and agreed upon as hereinafter set
forth.
ARTICLE I
1.1 The Merger. Upon the terms and subject to the conditions hereof,
and in accordance with the relevant provisions of the Nevada Revised Statutes
("NRS"), and the General Corporation Law of the State of Delaware ("DGCL"),
WCO-Nevada shall be merged with and into WCO-Delaware. Following the Merger,
WCO-Delaware shall continue as the surviving corporation and shall continue its
existence under the laws of the State of Delaware, and the separate corporate
existence of WCO-Nevada shall cease.
1.2 Effective Date and Effective Time. The Merger shall be consummated
by filing with the Secretary of State of the State of Delaware a Certificate of
Merger in accordance with the provisions of the DGCL and Articles of Merger with
the Secretary of State of the State of Nevada in accordance with the provisions
of the NRS and the conversion of the shares of stock of WCO-Nevada into shares
of stock of the Surviving Corporation as contemplated by Section 5.1. The Merger
shall have the effects set forth in the NRS and DGCL. The Merger shall be
effective immediately upon filing the Certificate of Merger with the Secretary
of State of the State of Delaware (the date and time of filing being referenced
to herein as the "Effective Date" and the "Effective Time," respectively).
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ARTICLE II
2.1 Effect of the Merger. At the Effective Time and without any further
action on the part of the Surviving Corporation, the Surviving Corporation shall
thereupon and thereafter possess all the rights, privileges, powers and
franchises of a public as well as of a private nature, of each of the
Corporations, and be subject to all the restrictions, disabilities and duties of
each of the Corporations so merged; and all of the rights, privileges, powers
and franchises of each of the Corporations, and all property, real, personal and
mixed, and all debts due to either of the Corporations on whatever account,
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises and all and every other interest shall be
thereafter the property of the Surviving Corporation as they were of the
Corporations; and the title to any real estate, vested by deed or otherwise,
under the laws of the State of Nevada or the State of Delaware or otherwise, in
either of the Corporations, shall not revert or in any way be impaired by reason
of the Merger; provided, that all debts, liabilities and duties of the
Corporations, and all rights of creditors and all liens upon any property of
either of the Corporations shall thenceforth attach to the Surviving
Corporation, and may be enforced against it to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it. Specifically,
without limiting the foregoing, at the Effective Time and without any further
action on the part of the Surviving Corporation, the Surviving Corporation shall
thereupon and thereafter possess all the rights, privileges and powers, and be
subject to all the restrictions, disabilities and duties of WCO-Nevada relating
to, and pursuant to the terms of, that certain Stock Purchase Agreement by and
between WCO-Nevada and Interprise Technology Partners, L.P. dated March 30, 1999
(the "Interprise SPA"), and all agreements related thereto, including but not
limited to the Registration Rights Agreement by and between WCO-Nevada,
Interprise Technology Partners, L.P., and the other persons listed therein dated
March 30, 1999.
2.2 Stock Options. At the Effective Time, WCO-Nevada's obligations with
respect to each option ("Option") to purchase shares of common stock of
WCO-Nevada ("WCO-Nevada Common Stock") issued pursuant to WCO-Nevada's 1999
Stock Option Plan (the "Option Plan") that is then issued and outstanding,
whether vested or unvested, shall be assumed by WCO-Delaware in accordance with
the terms of the Option Plan and the stock option agreement by which such Option
is evidenced. All rights with respect to WCO-Nevada Common Stock under
outstanding Options shall thereupon be automatically converted into rights with
respect to shares of common stock of WCO-Delaware ("WCO-Delaware Common Stock").
Accordingly, from and after the Effective Time: (i) each Option assumed by
WCO-Delaware may be exercised solely for shares of WCO-Delaware Common Stock;
(ii) the number of shares of WCO-Delaware Common Stock subject to each such
assumed Option shall be equal to the number of shares of common stock that were
subject to such Option immediately prior to the Effective Time; (iii) the per
share exercise price for the shares of WCO-Delaware Common Stock issuable upon
the exercise of each such assumed Option shall be equal to the exercise price
per share of WCO-Nevada Common Stock at which such Option was exercisable
immediately prior to the Effective Time; and (iv) the provisions of each such
Option shall otherwise remain unchanged.
2.3 Warrants. At the Effective Time, WCO-Nevada's obligations with
respect to each warrant to purchase WCO-Nevada Common Stock ("Warrant") that is
then issued and outstanding, whether vested or unvested, shall be assumed by
WCO-Delaware in accordance with the terms of the Warrant. All rights with
respect to WCO-Nevada Common Stock under outstanding Warrants shall
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thereupon be automatically converted into rights with respect to shares of
WCO-Delaware Common Stock. Accordingly, from and after the Effective Time: (i)
each Warrant assumed by WCO-Delaware may be exercised solely for shares of
WCO-Delaware Common Stock; (ii) the number of shares of WCO-Delaware Common
Stock subject to each such assumed Warrant shall be equal to the number of
shares of common stock that were subject to such Warrant immediately prior to
the Effective Time; (iii) the per share exercise price for the shares of
WCO-Delaware Common Stock issuable upon the exercise of each such assumed
Warrant shall be equal to the exercise price per share of WCO-Nevada Common
Stock at which such Warrant was exercisable immediately prior to the Effective
Time; and (iv) the provisions of each such Warrant shall otherwise remain
unchanged.
ARTICLE III
3.1 Articles of Incorporation; Bylaws. The Certificate of
Incorporation, including the Certificate of Designation, in the form attached
hereto as Exhibit "A" and by-laws of WCO-Delaware, shall be in effect
immediately prior to the Effective Time, and shall be the Certificate of
Incorporation and by-laws of the Surviving Corporation until thereafter amended
as provided by law, the Interprise SPA and the Surviving Corporation's
Certificate of Incorporation and by-laws.
ARTICLE IV
4.1 Directors. The directors of WCO-Nevada immediately prior to the
Effective Time shall be the directors of the Surviving Corporation and will hold
office from the Effective Time until their respective successors are duly
elected and qualified in the manner provided in the Certificate of Incorporation
and by-laws of the Surviving Corporation, or as otherwise provided by law.
4.2 Officers. The officers of WCO-Nevada immediately prior to the
Effective Time shall be the officers of the Surviving Corporation and will hold
office from the Effective Time until their respective successors are duly
elected or appointed in the manner provided in the by-laws of the Surviving
Corporation or as otherwise provided by law.
ARTICLE V
5.1 Conversion of Shares. At the Effective Time, by virtue of the
Merger and without any further action on the part of WCO-Delaware, WCO-Nevada,
or the shareholders of WCO-Nevada, the outstanding shares of WCO-Nevada Common
Stock shall be converted into shares of WCO-Delaware Common Stock, and the
outstanding shares of Class A convertible preferred stock of WCO-Nevada (the
"WCO-Nevada Preferred Stock") shall be converted into shares of Series A
convertible preferred stock of WCO-Delaware ("WCO-Delaware Preferred Stock") in
the manner described in this Article V.
5.2 Effect of Share Conversion. At the effective Time, all shares of
WCO-Nevada Common Stock and WCO-Nevada Preferred Stock converted pursuant to
this Article V shall cease to be outstanding and shall automatically be
cancelled and retired, and shall cease to exist, and each such certificate (a
"Certificate") previously evidencing WCO-Nevada Common Stock and WCO-Nevada
Preferred Stock, respectively, outstanding immediately prior to the Effective
Time shall thereafter represent the right to receive a certificate evidencing
shares of WCO-Delaware Common Stock and WCO-Delaware Preferred Stock
respectively, into which such WCO-Nevada Common
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Stock and WCO-Nevada Preferred Stock were converted in the Merger pursuant to
this Article V and, if applicable, the right to receive cash pursuant to Section
5.4.
5.3 Surrender of Certificates. After the Effective Time, each holder of
a Certificate immediately prior to the Effective Time shall surrender same to
the Surviving Corporation and shall receive in exchange therefore a new
certificate, representing the appropriate number of shares of common stock and
preferred stock respectively in the Surviving Corporation. Until so surrendered,
each Certificate shall, by virtue of the Merger, be deemed for all purposes to
evidence ownership of the appropriate number of shares of common stock and
preferred stock respectively of the Surviving Corporation.
5.4 Dissenter's Rights. Only stockholders who properly exercise
dissenter's rights, if any, in accordance with the provisions of the NRS, shall
be entitled to exercise such dissenter's rights in connection with the Merger.
ARTICLE VI
6.1 Book Value of Assets. The assets and liabilities of WCO-Nevada
shall be recorded upon the books of the Surviving Corporation at the amounts at
which said assets and liabilities are recorded upon the books of WCO-Nevada
immediately prior to the Effective Time.
ARTICLE VII
7.1 Termination. This Agreement may be terminated and abandoned by the
mutual consent of the Boards of Directors of the Corporations at any time before
the Effective Date, whether before or after approval of this Agreement and Plan
of Merger by the stockholders of WCO-Nevada.
ARTICLE VIII
8.1 Stockholder Approval. The obligations of each party hereto to
perform this agreement and to consummate the transaction contemplated hereby,
shall be subject to the approval and adoption by the stockholders of WCO-Nevada
holding at least a majority of the outstanding shares voting and written
approval of Interprise Technology Partners, L.P. pursuant to the Interprise SPA.
There are no stockholders of WCO-Delaware. Therefore, approval of this Agreement
by the stockholders of WCO-Delaware is not required pursuant to Section 251 (f)
of the DGCL.
8.2 Authorization. The Boards of Directors and the proper officers of
the Corporations are hereby authorized, empowered, and directed to do any and
all acts and things, and to make, execute, deliver, file, and/or record any and
all instruments, papers, and documents which shall be or become necessary,
proper, or convenient to carry out or put into effect any of the provisions of
this Agreement and Plan of Merger or of the merger herein provided for.
ARTICLE IX
9.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the
conflicts of law rules thereof.
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9.2 Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
9.3 Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be contrary to law, then the remaining provisions
of this Agreement, as applicable, if capable of substantial performance, shall
remain in full force and effect.
9.4 Third Party Beneficiaries. Interprise Technology Partners, L.P. is
an intended beneficiary of this Agreement. This Agreement is not intended to
confer upon any other person or entity, other than the parties hereto, any
rights or remedies.
9.5 Modification or Amendment.Subject to the applicable provisions of
the DGCL and the NRS, at any time prior to the approval of this Agreement by the
stockholders of WCO-Nevada, the parties hereto may modify or amend this
Agreement by mutual written agreement executed and delivered by duly authorized
officers or representatives of the respective parties.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement and Plan of Merger to be executed on its behalf and attested by its
officers thereunto duly authorized, all as of the date first above written.
WORLD COMMERCE ONLINE, INC.,
a Nevada corporation
By: /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, President
WORLD COMMERCE ONLINE, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, President
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