EXHIBIT 2.1
AGREEMENT OF MERGER
OF
PWT ACQUISITION CORP.
AND
PAC-WEST TELECOMM, INC.
This AGREEMENT OF MERGER entered into on September 16, 1998 by PWT
ACQUISITION CORP. and PAC-WEST TELECOMM, INC. as approved by the Board of
Directors of each of said corporations:
1. PWT ACQUISITION CORP., which is a corporation incorporated in the State of
California, and which is sometimes hereinafter referred to as the "disappearing
corporation," shall be merged with and into PAC-WEST TELECOMM, INC., which is a
corporation incorporated in the State of California, and which is sometimes
hereinafter referred to as the "surviving corporation."
2. The separate existence of the disappearing corporation shall cease upon the
effective date of the merger in accordance with the provisions of the General
Corporation Law of the State of California.
3. The surviving corporation shall continue its existence under its present
name pursuant to the provisions of the General Corporation Law of the State of
California.
4. The Articles of Incorporation of the surviving corporation shall be amended
and restated to read as set forth on Exhibit A attached hereto upon the
effective date of the merger and shall continue in full force and effect until
amended and changed in the manner prescribed by the provisions of the General
Corporation Law of the State of California.
5. The bylaws of the disappearing corporation upon the effective date of the
merger shall be the bylaws of said surviving corporation and shall continue in
full force and effect until changed, altered or amended as therein provided and
in the manner prescribed by the provisions of the General Corporation Law of the
State of California.
6. The members of the Board of Directors of the disappearing corporation upon
the effective date of the merger shall continue to be the members of the Board
of Directors of the surviving corporation, all of whom shall hold their
directorships until the election, choice, and qualification of their respective
successors or until their tenure is otherwise terminated in accordance with the
bylaws of the disappearing corporation.
7. The officers of the surviving corporation upon the effective date of the
merger shall continue to be the officers of the surviving corporation, all of
whom shall hold their office until the election,
choice, and qualification of their respective successors or until their tenure
is otherwise terminated in accordance with the bylaws of the disappearing
corporation.
8. Each issued and outstanding share of the disappearing corporation's
preferred stock, par value $.01 per share, shall, upon the effective date of the
merger, be converted into one share of the surviving corporation's preferred
stock and each issued and outstanding share of the disappearing corporation's
common stock, par value $.01 per share, shall be converted into one share of the
surviving corporation's common stock. Each issued and outstanding share of the
capital stock of the surviving corporation shall be converted into $7,361.60 of
cash, 3.65433 shares of the surviving corporation's preferred stock, par value
$.01 per share, provided that the aggregate number of shares of preferred stock
so issuable to each holder shall be rounded to the nearest 0.1 of a share, and
34.717 shares of the surviving corporation's common stock, par value $.01 per
share, provided that the aggregate number of shares of common stock so issuable
to each holder shall be rounded to the nearest 10 shares.
9. The Agreement of Merger herein entered into has been approved by the
shareholders entitled to vote thereon of the disappearing corporation and of the
surviving corporation in the manner prescribed by the provisions of the General
Corporation Law of the State of California.
10. The disappearing corporation and the surviving corporation hereby agree
that they will cause to be executed and filed and/or recorded any document or
documents prescribed by the laws of the State of California, and that they will
cause to be performed all necessary acts therein and elsewhere to effectuate the
merger.
11. The corporations party to this Agreement of Merger are also parties to an
Agreement and Plan of Merger. The two agreements are intended to be construed
together in order to effectuate their purposes.
12. The Board of Directors and the proper officers of the disappearing
corporation and of the surviving corporation, respectively, 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 of Merger or of the
merger herein provided for.
13. The effective date of the merger is the date upon which a copy of this
Agreement of Merger is filed with the Secretary of State of California.
2
IN WITNESS WHEREOF, the undersigned have executed this Agreement of Merger
as of the 16th day of September, 1998.
PWT ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxxx, President
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxxx X. Xxxxxxx, Assistant Secretary
PAC-WEST TELECOMM, INC.
By: /s/ Xxxx X. Xx Xxx
----------------------
President
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Secretary
