EXHIBIT 8.1
AGREEMENT AND PLAN OF MERGER
by and between
XXXXXXXXXXXX.XXX DELAWARE, INC.,
a Delaware corporation
and
XXXXXXXXXXXX.XXX, INC.,
a Colorado corporation
This Agreement and Plan of Merger (this "Agreement") dated as of November
__, 1999, is by and between XXXXXXXXXXXX.XXX DELAWARE, INC., a Delaware
corporation (hereinafter sometimes called "Freerealtime Delaware"), and
XXXXXXXXXXXX.XXX, INC., a Colorado corporation (hereinafter called "Freerealtime
Colorado"). Freerealtime Delaware and Freerealtime Colorado are sometimes
hereinafter referred to as the "constituent corporations."
STIPULATIONS AND RECITALS
1. Freerealtime Delaware is a corporation duly organized and existing
under the laws of the State of Delaware, with its registered office located at
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000. Freerealtime Delaware has a capitalization of fifty-five
million (55,000,000) authorized shares divided into two classes designated
"Common Stock" and "Preferred Stock": (a) 50,000,000 shares of Common Stock, par
value $.01 per share, and (b) 5,000,000 shares of Preferred Stock, par value
$.01 per share. Freerealtime Delaware has 1,000 shares of Common Stock issued
and outstanding, all of which are owned by Freerealtime Colorado.
2. Freerealtime Colorado is a corporation duly organized and existing
under the laws of the State of Colorado, with its principal office located at
0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000. Freerealtime
Colorado has a capitalization of fifty-five million (55,000,000) authorized
shares divided into two classes designated "Common Stock" and "Preferred Stock":
(a) 50,000,000 shares of Common Stock, no par value, and (b) 5,000,000 shares of
Preferred Stock, no par value. Freerealtime Colorado has _______________ shares
of Common Stock issued and outstanding and ________________ shares of Preferred
Stock issued and outstanding.
3. Freerealtime Delaware and Freerealtime Colorado have entered into this
Agreement in accordance with Section 252 of the General Corporation Law of the
State of Delaware (the "DGCL") and Section 0-000-000 of the Colorado Business
Corporation Act (the "CBCA") providing for the merger of Freerealtime Colorado
with and into Freerealtime Delaware (the "Merger"), which Agreement has been
approved, adopted, certified, executed and acknowledged by each of the
constituent corporations.
4. The boards of directors of the constituent corporations deem it
desirable and in the best interests of the corporations and their shareholders
that Freerealtime Colorado be merged into Freerealtime Delaware in accordance
with the provisions of Section 252 of the DGCL and Article 111 of the CBCA, in
order that the transaction qualify as a "reorganization" within the
meaning of Sections 368(a)(1)(A) and 368(a)(1)(F) of the Internal Revenue Code
of 1986, as amended.
5. The CBCA permits a merger of a business corporation of the State of
Colorado with and into a business corporation of another jurisdiction.
6. The DGCL permits the merger of a business corporation of another
jurisdiction with and into a business corporation of the State of Delaware.
7. The Agreement has been approved and adopted by the requisite
percentages of the outstanding voting stock of Freerealtime Colorado and
Freerealtime Delaware.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, being thereunto duly entered into by
Freerealtime Delaware and approved by resolutions adopted by its Board of
Directors and by its sole stockholder and being thereunto duly entered into by
Freerealtime Colorado and approved by resolutions adopted by its Board of
Directors and by the requisite vote of its shareholders at its 1999 Annual
Meeting of Shareholders, the Merger and the terms and conditions thereof and the
mode of carrying the same into effect, together with any provisions required or
permitted to be set forth herein are hereby determined and agreed upon as
follows:
SECTION ONE -- STATEMENT OF MERGER
Freerealtime Colorado shall, pursuant to the provisions of the DGCL, be
merged with and into Freerealtime Delaware, and from and after the effective
date of the Merger, Freerealtime Colorado shall cease to exist and Freerealtime
Delaware shall continue to exist pursuant to the provisions of the DGCL.
Freerealtime Delaware, as the surviving corporation from and after the effective
date of the Merger, is sometimes hereinafter referred to as the "Surviving
Corporation."
SECTION TWO -- TERMS AND CONDITIONS
(a) On the effective date of the Merger, the separate existence of
Freerealtime Colorado shall cease, and Freerealtime Delaware shall succeed to
all the rights, privileges, immunities, and franchises, and all the property,
real, personal and mixed, of Freerealtime Colorado, without the necessity for
any separate transfer. Freerealtime Delaware shall thereafter be responsible
and liable for all liabilities and obligations of Freerealtime Colorado, and
neither the rights of creditors nor any liens on the property of Freerealtime
Colorado shall be impaired by the Merger.
(b) Upon approval of this Agreement by the shareholders of Freerealtime
Colorado and the sole stockholder of Freerealtime Delaware, the sole stockholder
of Freerealtime Delaware shall be deemed to have adopted and approved (i) the
stock option plan of Freerealtime Colorado, and (ii) all options that are
outstanding under such stock option plan immediately prior to the Merger. Such
plan, options and warrants shall be deemed adopted and approved on the
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same terms and conditions existing under such plan, options and warrants
immediately prior to the Merger.
SECTION THREE -- CONVERSION OF SHARES
The manner and basis of converting the shares of Freerealtime Colorado into
shares of Freerealtime Delaware upon the effective date of the Merger shall be
as follows:
(a) Each share of the shares of Common Stock of Freerealtime Colorado
issued and outstanding on the effective date of the Merger shall be converted
into one share of Common Stock of the Surviving Corporation, which shall
thereafter be issued and outstanding shares of Common Stock of the Surviving
Corporation.
(b) Each share of the 1,000 shares of Common Stock of Freerealtime Delaware
issued and outstanding on the effective date of the Merger shall be canceled and
shall cease to exist.
(c) After the effective date of the Merger, the conversion and exchange of
shares provided by this Section Three shall be effected as follows:
(i) No certificates for shares of the Surviving Corporation's Common
Stock will be issued to holders of any of the shares of Freerealtime
Colorado's Common Stock upon consummation of the Merger.
(ii) Certificates representing shares of Freerealtime Colorado's
Common Stock shall upon the consummation of Merger be deemed for all
purposes to represent that number of shares of Common Stock of the
Surviving Corporation receivable in exchange therefor as provided in
Section 3(a) hereof.
(iii) Freerealtime Colorado, as the holder of a certificate for
shares of Common Stock in Freerealtime Delaware described in paragraph (c)
of this Section Three, shall surrender such certificate for cancellation.
(d) Each option under Freerealtime Colorado's stock option plan outstanding
immediately prior to the Merger shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and become an option
or right to purchase a number of shares of the Surviving Corporation's Common
Stock equal to the number of shares of Common Stock of Freerealtime Colorado
subject to such option, without change in the exercise price therefor and
otherwise upon the same terms and conditions of such option.
SECTION FOUR -- CERTIFICATE OF INCORPORATION
The Certificate of Incorporation of Freerealtime Delaware (the
"Certificate") shall continue to be the certificate of incorporation of the
Surviving Corporation following the effective date of the Merger until the same
shall be thereafter altered or amended; provided,
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however, that on the effective date, Article I of the Certificate shall be
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amended to read, in its entirety, as follows:
"ARTICLE I
The name of the corporation (hereinafter the "Corporation") is:
Xxxxxxxxxxxx.xxx, Inc."
SECTION FIVE -- BYLAWS
The bylaws of Freerealtime Delaware shall continue to be the bylaws of the
Surviving Corporation following the effective date of the Merger until the same
shall be thereafter altered or amended.
SECTION SIX -- DIRECTORS
The directors of Freerealtime Colorado as of the effective date of the
Merger shall be the directors of the Surviving Corporation from and after the
effective date of the Merger. All of such directors shall hold their
directorships until the election and qualification of their respective
successors, or until their prior resignation, removal or death.
SECTION SEVEN -- OFFICERS
The officers of Freerealtime Colorado as of the effective date of the
Merger shall be the officers of the Surviving Corporation from and after the
effective date of the Merger. All of such officers shall hold their offices
until the election and qualification of their respective successors or until
their tenure is otherwise terminated in accordance with the bylaws of the
Surviving Corporation, or until their prior resignation or death.
SECTION EIGHT -- DEFERRAL, TERMINATION AND AMENDMENT
The parties hereto may amend, modify, supplement or terminate this
Agreement at any time prior to the effective date of the Merger, whether prior
to or after approval of the Merger and this Agreement by the shareholders of
Freerealtime Colorado and the sole stockholder of Freerealtime Delaware, without
shareholder or stockholder approval, in such manner as may be agreed upon by
Freerealtime Colorado and Freerealtime Delaware in writing.
SECTION NINE -- AGREEMENT ON FILE
An executed copy of this Agreement is on file at the principal place of
business of Freerealtime Delaware located in the State of California, 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000.
SECTION TEN -- FURTHER ASSURANCES
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In the event that this Agreement shall have been fully approved and adopted
on behalf of Freerealtime Colorado in accordance with the provisions of the CBCA
and on behalf of Freerealtime Delaware in accordance with the provisions of the
DGCL, the constituent corporations agree that they will cause to be executed and
filed and recorded any document or documents prescribed by the laws of the State
of Colorado and by the laws of the State of Delaware, and that they will cause
to be performed all necessary acts within the State of Colorado and the State of
Delaware and elsewhere to effectuate the Merger.
The boards of directors and the proper officers of Freerealtime Colorado
and of Freerealtime Delaware are hereby authorized, empowered and directed to do
any and all acts and things, and to make, execute, deliver, file and 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.
SECTION ELEVEN -- EFFECTIVE DATE
The Merger shall have become effective on the date of filing of this
Agreement with the Secretary of State of the State of Delaware in accordance
with Sections 252(c) and 103 of the DGCL.
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IN WITNESS WHEREOF, Freerealtime Delaware and Freerealtime Colorado, as
duly authorized by their respective boards of directors, have caused this
Agreement to be executed and acknowledged as of the date first set forth above.
XXXXXXXXXXXX.XXX DELAWARE, INC.,
a Delaware corporation
By:_______________________________________
Xxxx X. Xxxx
President, Secretary and Chief Financial
Officer
XXXXXXXXXXXX.XXX, INC.,
a Colorado corporation
By:_______________________________________
Xxxx X. Xxxx
President and Chief Financial Officer
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