EXHIBIT A
AGREEMENT AND PLAN OF MERGER
SYMPHONY TELECOM INTERNATIONAL INC.
AGREEMENT AND PLAN OF MERGER, dated as of March __, 2001, between
SYMPHONY TELECOM INTERNATIONAL INC., a Utah corporation ("SYMY Utah"), and
SYMPHONY TELECOM CORP., a Delaware corporation ("SYMY Delaware"), such
corporations being sometimes referred to herein together as the "Corporations".
WITNESSETH:
WHEREAS, SYMY Utah was incorporated under the laws of the State of Utah
on ________, and the authorized capital stock of SYMY Utah consists of
50,000,000 shares of common stock, par value $.001 per share ("Utah Common
Stock"), of which 19,443,809 shares were issued and outstanding on the date
hereof, and 2,000,000 shares of preferred stock, par value $.10 per share, of
which [ Insert exact # ] shares are designated as Series A Preferred Stock
("Utah Preferred Stock") and were issued and outstanding on the date hereof (the
Utah Common Stock together with the Utah Preferred Stock are collectively
referred to herein as the "Utah Capital Stock");
WHEREAS, SYMY Delaware was incorporated under the laws of the State of
Delaware on February 13, 2001, and the authorized capital stock of SYMY Delaware
consists of 100,000,000 shares of common stock, par value $.0001 per share
("Delaware Common Stock") and 100,000,000 shares of preferred stock, par value
$.0001 per share ("Delaware Preferred Stock") (the Delaware Common Stock
together with the Delaware Preferred Stock are collectively referred to herein
as the "Delaware Capital Stock");
WHEREAS, there are currently outstanding 1,000 shares of Delaware
Common Stock, all of which are owned by SYMY Utah, constituting all of the
issued and outstanding capital stock of SYMY Delaware;
WHEREAS, the respective Boards of Directors of the Corporations have
determined that it is in the best interests of each of the corporations and
their respective shareholders that SYMY Utah merge with and into SYMY Delaware
(the "Merger"), pursuant to the provisions of the General Corporation Law of the
State of Delaware (the "GCL") and the Utah Revised Business Corporation Act (the
"BCA"), with SYMY Delaware to be the surviving corporation of the Merger and to
continue existence under the GCL;
WHEREAS, for U.S., federal income tax purposes, it is intended that the
Merger qualify as a tax-free reorganization within the meaning of Section
368(a)(1)(F) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, the respective Boards of Directors of the Corporations, by
resolutions duly adopted, have approved this Agreement, and have directed that
it be submitted to the respective shareholders of the Corporations for approval
and adoption;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements set forth herein, the Corporations hereby agree as follows:
ARTICLE ONE
MERGER
1.1 On the Effective Date (as defined in Section 1.6), and in
accordance with the provisions of the GCL and the BCA, SYMY Utah shall be merged
with and into SYMY Delaware, which shall be the surviving corporation (the
"Surviving Corporation") of the Merger. The name of the Surviving Corporation
is, and on and after the Effective Date shall continue to be, "Symphony Telecom
Corp."
1.2 On the Effective Date, the separate existence of SYMY Utah
shall cease, SYMY Utah and SYMY Delaware shall be a single corporation and the
Surviving Corporation shall possess all the rights, privileges, powers and
franchises, as well of a public as of a private nature, and shall be subject to
all the restrictions, disabilities and duties of each of the Corporations; and
all and singular, 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, as well for stock subscriptions
as all other things in action or belonging to or due to each of the
Corporations, shall be taken and deemed to be transferred to and vested in the
Surviving Corporation without further act or deed; and all property, rights,
privileges, powers and franchises, and all and every other interest shall be
thereafter as effectually the property of the Surviving Corporation as they'
were of the Corporations, and title to any real estate or interest therein,
vested by deed or otherwise in either of the Corporations, shall not revert or
be in any way impaired by reason of the Merger, but all rights of creditors and
any liens upon the property of either of the Corporations shall be preserved
unimpaired and all debts, liabilities and duties of each of the 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. Any action or proceeding, whether civil, criminal
or administrative, pending by or against either of the Corporations shall be
prosecuted as if the Merger had not taken place, or the Surviving Corporation
may be substituted in such action or proceeding in place of either of the
Corporations.
1.3 From time to time after the Effective Date, the last acting
officers of SYMY Utah or the corresponding officers of the Surviving Corporation
may, in the name of SYMY Utah, execute and deliver all such proper deeds,
assignments and other instruments and take or cause to be taken all such further
or other actions, as the Surviving Corporation, or its successors or assigns,
may deem necessary or desirable in order to vest in, or perfect or confirm to,
the Surviving Corporation and its successors and assigns, title to, and
possession of, all of the property, rights, privileges, powers and franchises
referred to in Section 1.2 and otherwise to carry out the intent and purposes of
this Agreement.
1.4 All corporate acts, plans (including, without limitation,
stock option plans), policies, approvals and authorizations of SYMY Utah, its
shareholders, Board of Directors, committees elected or appointed by its Board
of Directors, officers and agents, which are valid and effective immediately
prior to the Effective Date, shall be taken for all purposes as the acts, plans,
policies, approvals and authorizations of the Surviving Corporation and shall be
as effective and binding on the surviving corporation as they were with respect
to SYMY Utah. The employees of SYMY Utah shall become the employees of the
Surviving Corporation and shall continue to be entitled to the same rights and
benefits which they enjoyed as employees of SYMY Utah.
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1.5 On and after the Effective Date, (a) the Certificate of
Incorporation and By-Laws of SYMY Delaware, as in effect on the date hereof,
shall continue to be the Certificate of Incorporation and By-Laws of the
Surviving Corporation, unless and until they are thereafter duly altered,
amended or repealed, as provided therein or by law, (b) the persons serving as
directors and officers of SYMY Utah immediately prior to the Effective Date
shall be the directors and officers, respectively, of the Surviving Corporation
until their respective successors shall have been elected and shall have been
duly qualified or until their earlier death, resignation or removal, and (c) the
independent certified public accountants serving as auditors of SYMY Utah
immediately prior to the Effective Date shall serve 'as the auditors of SYMY
Delaware.
1.6 If this Agreement is approved and adopted by the shareholders
of SYMY Utah and the sole stockholder of SYMY Delaware and this Agreement is not
abandoned or terminated as permitted by Article Five, this Agreement shall be
certified, filed with the Secretary of State of Delaware and recorded in
accordance with the GCL and a Certificate of Merger shall be signed, verified
and filed with the Division of Corporations and Commercial Code of the State of
Utah in accordance with the BCA. The Merger shall become effective on the date
on which the last of such filings is made, which date is referred to herein as
the "Effective Date".
ARTICLE TWO
COVENANT OF THE SURVIVING CORPORATION
TO COMPLY WITH CERTAIN PROVISIONS OF UTAH LAW
The Surviving Corporation shall comply with the provisions of the BCA
'With respect to foreign corporations doing business in the State of Utah and,
in this regard, hereby agrees that it shall promptly pay to any dissenting
shareholders of SYMY Utah the amount, if any, to which they shall be entitled as
a result of the Merger under the provisions of the BCA with respect to the
rights of dissenting shareholders.
ARTICLE THREE
CONVERSION OF SHARES
The manner and basis of converting the shares of Utah Common Stock
shall be as follows:
3.1 On the Effective Date, each of the 1000 shares of Delaware
Common Stock owned by SYMY Utah immediately prior to the Effective Date shall,
by virtue of the Merger and without any action on the part of any party, be
cancelled and retired and all rights in respect thereof shall cease, and the
stated capital of SYMY Delaware shall be reduced by the $.10 of capital
applicable to such shares. SYMY Utah shall surrender the certificate for such
shares to the Secretary of SYMY Delaware for cancellation.
3.2 On the Effective Date, each share of Utah Common Stock issued
and outstanding on the Effective Date shall thereupon be converted into and
exchanged for one share of Delaware Common Stock. Such conversion shall be
effected without the surrender of stock certificates or any other action, and
each certificate evidencing issued and outstanding shares of Utah Common Stock
on the Effective Date shall thereupon become, and be deemed for all purposes to
evidence the ownership of, the same number of issued and outstanding, fully
paid, nonassessable shares' of Delaware Common Stock.
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3.3 On the Effective Date, each share of Utah Preferred Stock
issued and outstanding on the Effective Date shall thereupon be converted into
and exchanged for one share of Delaware Preferred Stock. Such conversion shall
be effected without the surrender of stock certificates or any other action, and
each certificate evidencing issued and outstanding shares of Utah Preferred
Stock on the Effective Date shall thereupon become, and be deemed for all
purposes to evidence the ownership of, the same number of issued and
outstanding, fully paid, nonassessable shares' of Delaware Preferred Stock.
3.4 On and after the Effective Date, each holder of a certificate
evidencing issued and outstanding shares of Utah Capital Stock may, but shall
not be required to, surrender such certificate to SYMY Delaware and, upon such
surrender, such holder shall be entitled to receive a certificate evidencing the
same number of shares of Delaware Capital Stock as the number of shares of Utah
Capital Stock formerly evidenced by the certificate surrendered. Until so
surrendered, each certificate which evidenced shares of Utah Capital Stock on
the Effective Date shall be deemed for all purposes to evidence the ownership of
the shares of Delaware Capital Stock into which such shares were converted by
virtue of the Merger. No service charge, brokerage commission or stock transfer
tax shall be payable by any holder of shares of Utah Capital Stock in connection
with the issuance of certificates evidencing shares of Delaware Capital Stock,
except that, if any such certificate is to be issued in a name other than that
in which the certificate surrendered for exchange is registered, it shall be a
condition of such issuance that the certificate so surrendered shall be properly
endorsed or otherwise in proper form for transfer and that the person requesting
such issuance shall pay any transfer or other taxes required by reason of the
issuance of the Delaware Capital Stock certificate in a name other than that of
the registered holder of the certificate surrendered, or establish to the
satisfaction of SYMY Delaware or its transfer agent that such tax has been paid
or is not applicable. SYMY Delaware shall have the right to rely upon the stock
records of SYMY Utah as to the ownership of shares of Delaware Capital Stock on
the Effective Date.
3.5 SYMY Utah shall not record on its books any transfer of
certificates representing issued and outstanding shares of Utah Capital Stock on
or after the Effective Date.
3.6 On the Effective Date, each option, warrant or right, to
purchase shares of Utah Common Stock granted by SYMY Utah and outstanding on the
Effective Date shall, by virtue of the Merger and without any action by any
party, be converted into an option, warrant or right, as the case may be, to
purchase, upon the same terms and conditions, the same number of shares of
Delaware Common Stock.
3.7 As of the Effective Date, the Surviving Corporation shall
reserve out of its authorized and unissued Delaware Common Stock a sufficient
number of shares thereof for issuance upon exercise or conversion of the
options, warrants and rights referred to in Section 3.6.
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ARTICLE FOUR
CONDITIONS
The consummation of the Merger is subject to the satisfaction prior to
the Effective Date of the following conditions: 4.1 At least a majority of the
outstanding shares of Utah Capital Stock entitled to vote shall have been voted
in favor of this Agreement and the transactions contemplated hereby, and SYMY
Utah, as the sole stockholder of SYMY Delaware, shall have approved this
Agreement and the transactions contemplated hereby. 4.2 The Board of Directors
of SYMY Utah shall not have determined that in light of the potential liability
of the Surviving Corporation which might result from the exercise of dissenters,
rights by shareholders of SYMY Utah, the Merger would be impracticable,
undesirable or not in the best interests of the shareholders of SYMY Utah.
4.3 No governmental authority or other third party shall have
instituted or threatened any action or proceeding against SYMY Utah or SYMY
Delaware to enjoin, hinder or delay, or to obtain damages or other relief in
connection with, the transactions contemplated by this Agreement and no action
shall have been taken by any court or governmental authority rendering SYMY Utah
or SYMY Delaware unable to consummate the transactions contemplated by this
Agreement.
ARTICLE FIVE
TERMINATION
This Agreement may be terminated and the Merger abandoned by SYMY Utah
or SYMY Delaware by appropriate resolution of its respective Board of Directors
and for any reason whatsoever, at any time prior to the Effective Date, whether
before or after approval and adoption of this Agreement by the shareholders of
SYMY Utah or by SYMY Utah as sole stockholder of SYMY Delaware. In the event
that this Agreement is terminated, it shall become void and shall have no effect
and no liability shall be imposed upon either of the Corporations or the
directors, officers or shareholders thereof.
ARTICLE SIX
AMENDMENT AND WAIVER
Prior to the Effective Date, whether before or after approval of this
Agreement by the shareholders of SYMY Utah or by SYMY Utah as sole stockholder
of SYMY Delaware, this Agreement may be amended or modified in any manner
(except that the provisions of sections 3.2, 3.3, and 3.6 may not be amended
without the approval of the shareholders of SYMY Utah), as may be determined in
the judgment of the respective Boards of Directors of the Corporations to be
necessary, desirable or expedient in order to clarify the intention of the
parties hereto or to effect or facilitate the filing, recording or official
approval of this Agreement and the Merger in accordance with the purposes and
intent of this Agreement. Any failure of either of the Corporations to comply
with any of the agreements set forth herein may be expressly waived in writing
by the other Corporation.
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IN WITNESS WHEREOF, each of the Corporations has caused this Agreement
and Plan of Merger to be executed on its behalf by an officer thereunto duly
authorized as of the date first set forth above.
SYMPHONY TELECOM
INTERNATIONAL INC. (UTAH)
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: CEO and Chairman of the Board
SYMPHONY TELECOM CORP. (DELAWARE)
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
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