EXHIBIT 2.01
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement") is made as
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of _________, 1998 by and between Best Internet Communications, Inc., a
California corporation ("Best California"), and Hiway Technologies, Inc., a
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Delaware corporation ("Hiway Delaware"). Best California and Hiway Delaware are
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hereinafter sometimes collectively referred to as the "Constituent
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Corporations."
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R E C I T A L S
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A. Best California was incorporated on September 21, 1994, Its
current authorized capital stock consists of: (1) 60,000,000 shares of Common
Stock, no par value ("Best California Common Stock"), of which ____________
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shares are issued and outstanding; and (2) 10,000,000 shares of Preferred Stock,
no par value ("Best California Preferred Stock"), none of which are issued and
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outstanding.
B. Hiway Delaware was incorporated on June 4, 1998. Its authorized
capital stock consists of: (1) 60,000,000 shares of Common Stock, with a par
value of $0.001 per share ("Hiway Delaware Common Stock"), of which 1,000 shares
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are issued and outstanding; and (2) 10,000,000 shares of Preferred Stock, $0.001
par value per share ("Hiway Delaware Preferred Stock"), none of which are issued
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and outstanding.
C. The respective Boards of Directors of Best California and Hiway
Delaware deem it advisable and to the advantage of each of the Constituent
Corporations that Best California merge with and into Hiway Delaware upon the
terms and subject to the conditions set forth in this Merger Agreement for the
purpose of effecting a change of the state of incorporation of Best California
from California to Delaware, changing the name of Best California to Hiway
Technologies, Inc. and effecting a one-for-two reverse stock split in which the
outstanding securities of Best California will be combined, on a two-for-one
basis, into securities of Hiway Delaware.
D. The Boards of Directors of each of the Constituent Corporations
have approved this Merger Agreement.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
set forth in this Merger Agreement and do hereby agree that Best California
shall merge with and into Hiway Delaware on the following terms, conditions and
other provisions:
1. MERGER AND EFFECTIVE TIME. At the Effective Time (as defined
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below), Best California shall be merged with and into Hiway Delaware (the
"Merger"), and Hiway Delaware shall be the surviving corporation of the Merger
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(the "Surviving Corporation"). The Merger shall become effective upon the close
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of business on the date when a duly executed copy of this Merger Agreement,
along with all required officers' certificates, is filed with the Secretary of
State of the State of California, or upon the close of business on the date when
a duly executed
Hiway Technologies, Inc.
Agreement and Plan of Merger
copy of this Merger Agreement, along with all required officers' certificates,
is filed with the Secretary of State of the State of Delaware , whichever later
occurs (the "Effective Time").
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2. EFFECT OF MERGER. At the Effective Time, the separate corporate
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existence of Best California shall cease; the corporate identity, existence,
powers, rights and immunities of Hiway Delaware as the Surviving Corporation
shall continue unimpaired by the Merger; and Hiway Delaware shall succeed to and
shall possess all the assets, properties, rights, privileges, powers,
franchises, immunities and purposes, and be subject to all the debts,
liabilities, obligations, restrictions and duties of Best California, all
without further act or deed.
3. GOVERNING DOCUMENTS. At the Effective Time, the Certificate of
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Incorporation of Hiway Delaware in effect immediately prior to the Effective
Time shall become the Certificate of Incorporation of the Surviving Corporation
and the Bylaws of Hiway Delaware in effect immediately prior to the Effective
Time shall become the Bylaws of the Surviving Corporation.
4. DIRECTORS AND OFFICERS. At the Effective Time, the directors and
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officers of Hiway Delaware shall be and become the directors and officers
(holding the same titles and positions) of the Surviving Corporation and after
the Effective Time shall serve in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
5. CONVERSION OF SHARES OF BEST CALIFORNIA. Subject to the terms and
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conditions of this Agreement, at the Effective Time, each share of Best
California Common Stock outstanding immediately prior thereto shall be
automatically changed and converted into one-half of one fully paid and
nonassessable, issued and outstanding share of Hiway Delaware Common Stock
(subject to the elimination of fractional shares as provided in Section 9
below).
6. CANCELLATION OF SHARES OF HIWAY DELAWARE . At the Effective Time,
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all of the previously issued and outstanding shares of Hiway Delaware Common
Stock that were issued and outstanding immediately prior to the Effective Time
shall be automatically retired and canceled.
7. STOCK CERTIFICATES. At and after the Effective Time, all of the
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outstanding certificates that, prior to that date, represented shares of Best
California Common Stock shall be deemed for all purposes to evidence ownership
of and to represent the number of shares of Hiway Delaware Common Stock into
which such shares of Best California Common Stock are converted as provided
herein. The registered owner on the books and records of Best California of any
such outstanding stock certificate for Best California Common Stock shall, until
such certificate shall have been surrendered for transfer or otherwise accounted
for to Hiway Delaware or its transfer agent, be entitled to exercise any voting
and other rights with respect to, and to receive any dividend and other
distributions upon, the shares of Hiway Delaware Common Stock evidenced by such
outstanding certificate as above provided.
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Hiway Technologies, Inc.
Agreement and Plan of Merger
8. CONVERSION OF OPTIONS AND WARRANTS. At the Effective Time, all
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outstanding and unexercised portions of all options to purchase shares of Best
California Common Stock under Best California's 1998 Equity Incentive Plan,
Stock Option Plan, Amended and Restated 1996 Stock Option Plan and Stock Option
Plan of Hiway Technologies, Inc., a Florida corporation (collectively, the
"Plans"), shall become options to purchase one-half the number of shares of
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Hiway Delaware Common Stock subject to such options (subject to the elimination
of fractional shares as provided in Section 9 below) at twice the original
exercise price per share and shall, to the extent permitted by law and otherwise
reasonably practicable, have the same term, exercisability, vesting schedule,
status as an "incentive stock option" under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), if applicable, and all other material
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terms and conditions (including but not limited to the terms and conditions
applicable to such options by virtue of the Plans). Continuous employment with
Best California will be credited to an optionee for purposes of determining the
vesting of the number of shares of Hiway Delaware Common Stock under a converted
Best California option at the Effective Time. Additionally, at the Effective
Time, Hiway Delaware shall adopt and assume the Plans. At the Effective Time,
all outstanding and unexercised portions of all warrants to purchase or acquire
Best California Common Stock shall become warrants to purchase or acquire, at
twice the exercise price but otherwise on the same terms and conditions, one-
half the number of shares of Hiway Delaware Common Stock subject to such
warrants.
9. FRACTIONAL SHARES. No fractional shares of Hiway Delaware Common
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Stock will be issued in connection with the Merger. In lieu thereof, Hiway
Delaware shall pay each shareholder of Best California who would otherwise be
entitled to receive a fractional share of Hiway Delaware Common Stock (assuming
the aggregation of all shares held by the same holder of more than one stock
certificate representing shares of Best California Common Stock) a cash amount
equal to the applicable fraction multiplied by the fair market value of a share
of Hiway Delaware Common Stock, as the case may be, as determined by the Board
of Directors of Hiway Delaware in good faith (the "Fair Market Value Per
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Share"). Upon exercise of each assumed option or warrant of Best California to
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purchase Hiway Delaware Common Stock, cash will be paid by Hiway Delaware in
lieu of any fractional share of Hiway Delaware Common Stock issuable upon
exercise of such option or warrant, and the amount of cash received for such
fractional share shall be the Fair Market Value Per Share upon exercise thereof
multiplied by the applicable fraction, less the unpaid exercise price per share
for such fraction.
10. EMPLOYEE BENEFIT PLANS. At the Effective Time, the obligations
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of Best California under or with respect to every plan, trust, program and
benefit then in effect or administered by Best California for the benefit of the
directors, officers and employees of Best California or any of its subsidiaries
shall become the lawful obligations of Hiway Delaware and shall be implemented
and administered in the same manner and without interruption until the same are
amended or otherwise lawfully altered or terminated. Effective at the Effective
Time, Hiway Delaware hereby expressly adopts and assumes all obligations of Best
California under such employee benefit plans.
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Hiway Technologies, Inc.
Agreement and Plan of Merger
11. FURTHER ASSURANCES. From time to time, as and when required by
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the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of Best California such deeds, assignments and
other instruments, and there shall be taken or caused to be taken by it all such
further action as shall be appropriate, advisable or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Best California, and otherwise
to carry out the purposes of this Merger Agreement. The officers and directors
of the Surviving Corporation are fully authorized in the name of and on behalf
of Best California, or otherwise, to take any and all such actions and to
execute and deliver any and all such deeds and other instruments as may be
necessary or appropriate to accomplish the foregoing.
12. CONDITION. The consummation of the Merger is subject to the
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approval of this Merger Agreement and the Merger contemplated hereby by the
shareholders of Best California and by the sole stockholder of Hiway Delaware,
prior to or at the Effective Time.
13. ABANDONMENT. At any time before the Effective Time, this Merger
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Agreement may be terminated and the Merger abandoned by the Board of Directors
of Best California or Hiway Delaware notwithstanding approval of this Merger
Agreement by the Boards of Directors and shareholders of Best California and
Hiway Delaware.
14. AMENDMENT. At any time before the Effective Time, this Merger
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Agreement may be amended, modified or supplemented by the Boards of Directors of
the Constituent Corporations notwithstanding approval of this Merger Agreement
by the shareholders of Best California and the sole stockholder of Hiway
Delaware; provided, however, that any amendment made subsequent to the adoption
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of this Agreement by the shareholders of Best California or the sole stockholder
of Hiway Delaware shall not: (i) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or upon
conversion of any shares of Best California; (ii) alter or change any of the
terms of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Merger; or (iii) alter or change any of the terms or conditions
of this Merger Agreement if such alteration or change would adversely affect the
holders of any shares of Best California or Hiway Delaware.
15. TAX-FREE REORGANIZATION. The Merger is intended to be a tax-free
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plan of reorganization within the meaning of Section 368(a)(1)(F) of the Code.
16. GOVERNING LAW. This Agreement shall be governed by and construed
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under the internal laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to the principles of conflicts of law or choice of
laws, except to the extent that the laws of the State of Delaware would apply in
matters relating to the internal affairs of Hiway Delaware and the Merger.
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Hiway Technologies, Inc.
Agreement and Plan of Merger
17. COUNTERPARTS. In order to facilitate the filing and recording of
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this Merger Agreement, it may be executed in any number of counterparts, each of
which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf
of each of the Constituent Corporations and attested by their respective
officers hereunto duly authorized.
BEST INTERNET HIWAY TECHNOLOGIES, INC.
COMMUNICATIONS, INC., a Delaware corporation
a California corporation
By:____________________________ By: ____________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Executive Vice President and Executive Vice President and
Chief Financial Officer Chief Financial Officer
ATTEST: ATTEST:
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By:____________________________ By: ____________________________
Xxxxxx X. Xxxxxxx, Secretary Xxxxxx X. Xxxxxxx, Secretary
[Signature Page to Agreement and Plan of Merger]
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