EXHIBIT 2.8
AGREEMENT AND
PLAN OF REORGANIZATION
DATED JUNE 4, 1996
BY AND BETWEEN
NETSOURCE INTERACTIVE
AND
TRANSPHERE INTERACTIVE, INC.
TABLE OF CONTENTS
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Page
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1. Certain Definitions................................................. 1
1.1 "Code"........................................................ 1
1.2 "Commission".................................................. 1
1.3 "Securities Act".............................................. 1
1.4 "Transaction Documents"....................................... 1
2. Plan of Reorganization.............................................. 2
2.1 The Merger..................................................... 2
2.2 Exchange of Shares and Options................................. 2
2.3 The Closing.................................................... 2
2.4 Effective Time................................................. 3
2.5 Tax Free Reorganization........................................ 3
2.6 Restricted Securities.......................................... 3
3. Mutual Covenants.................................................... 3
3.1 Due Diligence, Investigation, and Audits....................... 3
3.2 Regulatory Filings; Consents; Reasonable Efforts............... 4
3.3 Further Assurances............................................. 4
4. Closing Matters..................................................... 4
4.1 Filing of Certificate of Merger................................ 4
5. Conditions to Transphere's Obligations.............................. 4
5.1 NetSource Certificate of Incorporation......................... 4
5.2 Date of Closing................................................ 4
5.3 Filing of Certificate of Merger................................ 4
6. Conditions to NetSource's Obligations............................... 5
6.1 NetSource Certificate of Incorporation......................... 5
6.2 Date of Closing................................................ 5
6.3 Filing of Certificate of Merger................................ 5
7. Termination of Agreement............................................ 5
7.1 Termination.................................................... 5
7.2 Liability for Termination...................................... 5
7.3 Certain Effects of Termination................................. 5
7.4 Remedies....................................................... 6
8. No Survival of Covenants and Agreements............................. 6
9. Miscellaneous....................................................... 6
9.1 Governing Laws................................................ 6
9.2 Binding upon Successors and Assigns........................... 6
9.3 Severability.................................................. 6
i.
9.4 Entire Agreement.............................................. 7
9.5 Counterparts.................................................. 7
9.6 Expenses...................................................... 7
9.7 Amendment and Waivers......................................... 7
9.8 Survival of Agreements........................................ 7
9.9 No Waiver..................................................... 7
9.10 Attorneys' Fees............................................... 7
9.11 Notices....................................................... 8
9.12 Time.......................................................... 8
9.13 Construction of Agreement..................................... 8
9.14 No Joint Venture.............................................. 8
9.15 Pronouns...................................................... 8
9.16 Further Assurances............................................ 9
9.17 Absence of Third Party Beneficiary Rights..................... 9
EXHIBIT A CERTIFICATE OF MERGER..........................................11
EXHIBIT B RESTATED CERTIFICATE OF INCORPORATION..........................12
ii.
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is entered
into this 4th day of June, 1996, by and between NetSource Interactive, a
Delaware corporation ("NetSource"), and Transphere Interactive, Inc., a
California corporation ("Transphere").
RECITAL
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WHEREAS, subject to and in accordance with the terms and conditions of
this Agreement and pursuant to the Certificate of Merger attached hereto as
Exhibit A ("Certificate of Merger"), the respective Board of Directors and
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security holders of NetSource and Transphere have approved the merger of
Transphere with and into NetSource (the "Merger"), whereby all of the
outstanding shares of common stock of Transphere ("Transphere Stock") will be
converted into shares of common stock of NetSource ("NetSource Common Stock"),
and all outstanding options to purchase Transphere Stock will be exchanged for
options to purchase NetSource Common Stock.
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a tax free reorganization within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, the parties hereto desire to set forth certain representations,
warranties and covenants made by each to the other as an inducement to the
consummation of the Merger.
AGREEMENT
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NOW, THEREFORE, in reliance on the foregoing recitals and in and for the
consideration and mutual covenants set forth herein, the parties agree as
follows:
1. Certain Definitions.
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1.1 "Code" shall mean the United States Internal Revenue Code of
1986, as amended.
1.2 "Commission" shall mean the United States Securities and Exchange
Commission.
1.3 "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
1.4 "Transaction Documents" shall mean all documents or agreements
attached as an exhibit or schedule hereto, and set forth on the Table of
Contents.
2. Plan of Reorganization.
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2.1 The Merger. Subject to the terms and conditions of this Agreement
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and the Certificate of Merger, Transphere shall be merged with and into
NetSource in accordance with the applicable provisions of the laws of the State
of California and the State of Delaware, and with the terms and conditions of
this Agreement and the Certificate of Merger, so that:
(a) At the Effective Time, Transphere shall be merged with and
into NetSource. As a result of the Merger, the separate corporate existence of
Transphere shall cease and NetSource shall continue as the surviving corporation
(sometimes referred to herein as the "Surviving Corporation") and shall succeed
to and assume all of the rights and obligations of NetSource in accordance with
the laws of California and Delaware.
(b) The Certificate of Incorporation and Bylaws of NetSource in
effect at the Effective Time shall be the Certificate of Incorporation and
Bylaws, respectively, of the Surviving Corporation after the Effective Time
unless and until further amended as provided by law.
(c) Subject to the terms of this Agreement, the directors and
officers of Transphere immediately prior to the Effective Time shall be the
directors and officers of the Surviving Corporation after the Effective Time.
Such directors and officers shall hold their position 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.
2.2 Exchange of Shares and Options.
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(a) Each share of Transphere Stock, issued and outstanding
immediately prior to the Effective Time, will be exchanged for approximately
0.9247 shares of fully paid and nonassessable NetSource Common Stock pursuant to
Exchange Agreements entered into between NetSource and each shareholder of
Transphere on the date hereof.
(b) Each option to purchase shares of Transphere Stock
("Transphere Option") that is outstanding immediately prior to the Effective
Time will be exchanged by NetSource and converted into an option (a "NetSource
Option") to purchase NetSource Common Stock pursuant to Exchange Agreements
entered into between NetSource and each shareholder of Transphere on the date
hereof.
2.3 The Closing. Subject to termination of this Agreement as provided in
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Section 7 below, the closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Xxxx Xxxx Xxxx & Freidenrich,
A Professional Corporation, 000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx, as soon
as possible upon the satisfaction or waiver of all conditions set forth in
Section 5 and Section 6 hereof (the "Closing Date"), or such other time and
place as is mutually agreeable to the parties.
2.
2.4 Effective Time. Simultaneously with the Closing, the Certificate of
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Merger shall be filed in the office of the Secretary of State of the State of
Delaware. The Merger shall become effective immediately upon the filing of the
Certificate of Merger with such office. The date and time of the effectiveness
of the Merger under the laws of Delaware is the "Effective Time."
2.5 Tax Free Reorganization. The parties intend to adopt this Agreement
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as a tax-free plan of reorganization and to consummate the Merger in accordance
with the provisions of Section 368(a)(1)(A) of the Code. Each party agrees that
it will not take or assert any position on any tax return, report or otherwise
which is inconsistent with the qualification of the Merger as a reorganization
within the meaning of Section 368(a) of the Code. The NetSource Common Stock
issued in the Merger will be issued solely in exchange for the Transphere Stock
pursuant to this Agreement, and no other transaction other than the Merger
represents, provides for or is intended to be an adjustment to the consideration
paid for the Transphere Common Stock. Except for cash paid in lieu of fractional
shares, no consideration that could constitute "other property" within the
meaning of Section 356 of the Code is being paid by NetSource for the Transphere
Stock. In addition, NetSource represents now, and as of the Closing Date, that
it presently intends to continue Transphere's historic business or use a
significant portion of Transphere's business assets in a business.
2.6 Restricted Securities. The NetSource Common Stock will be subject to
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the following restrictions:
(a) restrictions imposed by applicable federal and state securities
laws;
(b) certificates representing NetSource Common Stock will bear
legends describing certain of the applicable restrictions on transferability
referred to in this Section 2.6.
3. Mutual Covenants.
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3.1 Due Diligence, Investigation, and Audits. At such time prior
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to the Closing as may be reasonably requested, each party shall make available
to the other party and the other party's employees, agents and representatives
all information concerning the operation, business and prospects of such party
as may be reasonably requested by the other party, including, without
limitation, making the working papers of such party's independent certified
public accountants available for inspection by the other party's independent
certified public accountants. Each party will cooperate with the other party for
the purpose of permitting the other party to discuss such party's business and
prospects with such party's customers, creditors, suppliers and other persons
having business dealings with such party, subject to reasonable confidentiality
obligations between the parties.
3.
3.2 Regulatory Filings; Consents; Reasonable Efforts. Subject to the
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terms and conditions of this Agreement, Transphere and NetSource shall use their
respective best efforts to (i) make all necessary filings with respect to the
Merger and this Agreement under the Securities Act, and applicable blue sky or
similar securities laws and shall use all reasonable efforts to obtain required
approvals and clearances with respect thereto and shall supply all additional
information requested in connection therewith; (ii) make merger notification or
other appropriate filings with federal, state or local governmental bodies or
applicable foreign governmental agencies and shall use all reasonable efforts to
obtain required approvals and clearances with respect thereto and shall supply
all additional information requested in connection therewith; and (iii) take, or
cause to be taken, all appropriate action, and do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement.
3.3 Further Assurances. Prior to and following the Closing, each
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party agrees to cooperate fully with the other parties and to execute such
further instruments, documents and agreements and to give such further written
assurances, as may be reasonably requested by any other party to better evidence
and reflect the transactions described herein and contemplated hereby and to
carry into effect the intents and purposes of this Agreement.
4. Closing Matters.
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4.1 Filing of Certificate of Merger. On the date of the Closing, but
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not prior to the Closing, the Certificate of Merger shall be filed with the
offices of the Secretary of State of the State of Delaware and the merger of
Transphere with and into NetSource shall be consummated.
5. Conditions to Transphere's Obligations. Unless otherwise provided
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below, Transphere's obligations to close the transactions contemplated under
this Agreement are subject to the fulfillment or satisfaction by the Closing
Date of each of the following conditions (any one or more of which may be waived
by Transphere, but only in a writing signed by Transphere):
5.1 NetSource Certificate of Incorporation. NetSource shall have
--------------------------------------
amended and restated its Certificate of Incorporation in substantially the form
attached hereto as Exhibit B.
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5.2 Date of Closing. The Closing shall have occurred not later than
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June 30, 1996, or such later date as the parties may mutually agree.
5.3 Filing of Certificate of Merger. As of the Closing, the
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Certificate of Merger shall have been filed with the Secretary of State of the
State of Delaware.
4.
6. Conditions to NetSource's Obligations. Unless otherwise provided
-------------------------------------
below, NetSource's obligations to close the transactions contemplated under this
Agreement are subject to the fulfillment or satisfaction by the Closing Date of
each of the following conditions (any one or more of which may be waived by
NetSource, but only in a writing signed by NetSource):
6.1 NetSource Certificate of Incorporation. NetSource shall have
--------------------------------------
amended and restated its Certificate of Incorporation in substantially the form
attached hereto as Exhibit B.
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6.2 Date of Closing. The Closing shall have occurred not later than
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June 30, 1996, or such later date as the parties may mutually agree.
6.3 Filing of Certificate of Merger. As of the Closing, the
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Certificate of Merger shall have been filed with the Secretary of State of the
State of Delaware.
7. Termination of Agreement.
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7.1 Termination. This Agreement may be terminated at any time prior
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to the Closing by the mutual written consent of each of the parties hereto. This
Agreement may also be terminated and abandoned:
(a) By NetSource if any of the conditions precedent to
NetSource's obligations pursuant to Section 6 shall not have been fulfilled at
and as of the Closing.
(b) By Transphere if any of the conditions precedent to
Transphere's obligations pursuant to Section 5 above shall not have been
fulfilled at and as of the Closing.
(c) By either Transphere or NetSource, if the Merger is not
effected by June 30, 1996.
Any termination of this Agreement under this Section 7.1 shall be effected
by the delivery of written notice of the terminating party to the other parties
hereto.
7.2 Liability for Termination. Any termination of this Agreement
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pursuant to this Section 7 shall be without further obligation or liability upon
any party in favor of any other party hereto. The provisions of this Section 7.2
shall survive termination.
7.3 Certain Effects of Termination. In the event of the termination
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of this Agreement by either Transphere or NetSource as provided in Section 7.1
hereof, each party, if so requested by the other party, will (i) return promptly
every document (other than documents publicly available) furnished to it by the
other party (or any subsidiary, division, associate or affiliate of such other
party) in connection with the transactions contemplated hereby, whether so
obtained before or after the execution of this Agreement, and any copies thereof
which may have been made, and will cause its representatives and any
representatives of financial institutions and investors and others to whom such
documents were furnished promptly to return such documents and any copies
thereof any of them may have made, or
5.
(ii) destroy such documents and cause its representatives and such other
representatives to destroy such documents, and such party shall deliver a
certificate executed by its president or vice president stating to such effect.
7.4 Remedies. No party shall be limited to the termination right granted
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in Section 7.1 hereto by reason of the nonfulfillment of any condition to such
party's closing obligations but may, in the alternative, elect to do one of the
following:
(a) proceed to close despite the nonfulfillment of any closing
condition, it being understood that consummation of the transactions
contemplated hereby shall be deemed a waiver of any misrepresentation or breach
of warranty or covenant and of any party's rights and remedies with respect
thereto to the extent that the other party shall have actual knowledge of such
misrepresentation or breach and the Closing shall nonetheless take place; or
(b) decline to close and terminate this Agreement as provided in
Section 7.1 hereof.
8. No Survival of Covenants and Agreements. The representations,
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warranties, covenants and agreements of the parties contained in Sections 3, 4,
5 and 6 of this Agreement shall terminate at and shall not survive the Closing
Date, except for covenants that by their own terms apply after the Closing Date.
9. Miscellaneous.
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9.1 Governing Laws. It is the intention of the parties hereto that
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the internal laws of the State of California (irrespective of its choice of law
principles) shall govern the validity of this Agreement, the construction of its
terms, and the interpretation and enforcement of the rights and duties of the
parties hereto.
9.2 Binding upon Successors and Assigns. Subject to, and unless
-----------------------------------
otherwise provided in, this Agreement, each and all of the covenants, terms,
provisions, and agreements contained herein shall be binding upon, and inure to
the benefit of, the permitted successors, executors, heirs, representatives,
administrators and assigns of the parties hereto.
9.3 Severability. If any provision of this Agreement, or the
------------
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall be interpreted so as best to reasonably
effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision which will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision.
6.
9.4 Entire Agreement. This Agreement, the exhibits hereto, the
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documents referenced herein, and the exhibits thereto, constitute the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and thereof and supersede all prior and contemporaneous agreements
or understandings, inducements or conditions, express or implied, written or
oral, between the parties with respect hereto and thereto. The express terms
hereof control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.
9.5 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original as against any party whose
signature appears thereon and all of which together shall constitute one and the
same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as signatories.
9.6 Expenses. Except as provided to the contrary herein, each party
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shall pay all of its own costs and expenses incurred with respect to the
negotiation, execution and delivery of this Agreement, the exhibits hereto, and
the other Transaction Documents. If the Merger is consummated, all investment
banking, broker's and finder's fees incurred by Transphere and/or its
shareholders in connection with the Merger will become obligations of NetSource.
9.7 Amendment and Waivers. Any term or provision of this Agreement may
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be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to constitute
a waiver of any other default or any succeeding breach or default.
9.8 Survival of Agreements. All covenants, agreements, representations
----------------------
and warranties made herein shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
notwithstanding any investigation of the parties hereto and shall terminate on
the date one year after the Closing Date.
9.9 No Waiver. The failure of any party to enforce any of the
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provisions hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
9.10 Attorneys' Fees. Should suit be brought to enforce or interpret any
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part of this Agreement, the prevailing party shall be entitled to recover, as an
element of the costs of suit and not as damages, reasonable attorneys' fees to
be fixed by the court (including without limitation, costs, expenses and fees on
any appeal). The prevailing party shall be the party entitled to recover its
costs of suit, regardless of whether such suit proceeds to final judgment. A
party not entitled to recover its costs shall not be entitled to recover
attorneys' fees. No sum for attorneys' fees shall be counted in calculating the
amount of a judgment for purposes of determining if a party is entitled to
recover costs or attorneys' fees.
7.
9.11 Notices. Any notice provided for or permitted under this Agreement
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will be treated as having been given when (a) delivered personally, (b) sent by
confirmed telex or telecopy, (c) sent by commercial overnight courier with
written verification of receipt, or (d) mailed postage prepaid by certified or
registered mail, return receipt requested, to the party to be notified, at the
address set forth below, or at such other place of which the other party has
been notified in accordance with the provisions of this Section 9.11.
Transphere: Transphere Interactive, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
NetSource: NetSource Interactive
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
With copy to: Xxxx Xxxx Xxxx & Freidenrich
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Such notice will be treated as having been received upon actual receipt.
9.12 Time. Time is of the essence of this Agreement.
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9.13 Construction of Agreement. This Agreement has been negotiated by
-------------------------
the respective parties hereto and their attorneys and the language hereof shall
not be construed for or against any party. The titles and headings herein are
for reference purposes only and shall not in any manner limit the construction
of this Agreement which shall be considered as a whole.
9.14 No Joint Venture. Nothing contained in this Agreement shall be
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deemed or construed as creating a joint venture or partnership between any of
the parties hereto. No party is by virtue of this Agreement authorized as an
agent, employee or legal representative of any other party. No party shall have
the power to control the activities and operations of any other and their status
is, and at all times, will continue to be, that of independent contractors with
respect to each other. No party shall have any power or authority to bind or
commit any other. No party shall hold itself out as having any authority or
relationship in contravention of this Section 9.14.
9.15 Pronouns. All pronouns and any variations thereof shall be deemed
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to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
8.
9.16 Further Assurances. Each party agrees to cooperate fully with the
------------------
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably requested by
any other party to better evidence and reflect the transactions described herein
and contemplated hereby and to carry into effect the intents and purposes of
this Agreement.
9.17 Absence of Third Party Beneficiary Rights. No provisions of this
-----------------------------------------
Agreement are intended, nor shall be interpreted, to provide or create any third
party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, stockholder, partner of any party hereto or any other
person or entity except employees and shareholders of Transphere specifically
referred to herein, and, except as so provided, all provisions hereof shall be
personal solely between the parties to this Agreement.
9.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
NETSOURCE INTERACTIVE TRANSPHERE INTERACTIVE, INC.
By:/s/ Xxxxxxx Xxxxxxxxxxx By:/s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------- --------------------------------
Title: President Title: President
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10.
EXHIBIT A
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CERTIFICATE OF MERGER
OF TRANSPHERE INTERACTIVE, INC.
(a California corporation)
INTO
NETSOURCE INTERACTIVE SERVICES, INC.
(a Delaware corporation)
The undersigned corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, does hereby certify:
First: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
Name State of Incorporation
---- ----------------------
Transphere Interactive, Inc. California
NetSource Interactive Services, Inc. Delaware
Second: That an Agreement and Plan of Reorganization dated as of June 4,
1996, between NetSource Interactive Services, Inc. and Transphere Interactive,
Inc. has been approved, adopted, certified, executed and acknowledged by each of
the constituent corporations in accordance with the requirements of Section 252
of the General Corporation Law of the State of Delaware and Section 1201 of the
California General Corporate Law.
Third: That the name of the surviving corporation of the merger is
NetSource Interactive Services, Inc. (the "Surviving Corporation").
Fourth: That the Certificate of Incorporation of NetSource Interactive
Services, Inc., as amended, shall, as of the effective time of the merger, be
the Certificate of Incorporation, of the Surviving Corporation.
Fifth: That the executed Agreement and Plan of Reorganization is on file
at the principal place of business of the Surviving Corporation. The address of
said principal place of business is 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000.
Sixth: That a copy of the Agreement and Plan of Reorganization will be
furnished by the Surviving Corporation upon request and without charge to any
stockholder of any constituent corporation.
Seventh: The authorized capital stock of Transphere Interactive, Inc. is
12,000,000 shares of Common Stock, no par value.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed by its duly authorized officer this 4th day of June, 1996.
NETSOURCE INTERACTIVE
SERVICES, INC.
(a Delaware corporation)
By: /s/ Xxxxxxx Xxxxxxxxxxx
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Xxxxxxx Xxxxxxxxxxx
11.
EXHIBIT B
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RESTATED CERTIFICATE OF INCORPORATION
[intentionally omitted]
12.
