AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made as
of April 24, 2000, by and between 9278 Communications, Inc., a Nevada
corporation (the "Nevada Company"), and 9278 Communications, Inc., a Delaware
corporation (the "Delaware Company"); (the Nevada Company and the Delaware
Company collectively, the "Constituent Corporations").
WHEREAS, the authorized capital stock of the Nevada Company consists of
twenty-five million (25,000,000) shares of Common Stock, $0.001 par value per
share, and five million (5,000,000) shares of Preferred Stock, $0.001 par value
per share, of which two thousand five hundred (2,500) shares have been
designated as Series B Convertible Preferred Stock;
WHEREAS, the authorized capital stock of the Delaware Company consists
of forty million (40,000,000) shares of Common Stock, $0.001 par value per
share, and five million (5,000,000) shares of Preferred Stock, $0.001 par value
per share, of which two thousand five hundred (2,500) shares have been
designated as Series B Convertible Preferred Stock.; and
WHEREAS, the directors of the Constituent Corporations deem it
advisable and to the advantage of the Constituent Corporations that the Nevada
Company merge with and into the Delaware Company upon the terms and conditions
provided herein.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that the Nevada Company
shall merge with and into the Delaware Company on the following terms,
conditions and other provisions:
1. TERMS AND CONDITIONS.
1.1 MERGER. the Nevada Company shall be merged with and into the
Delaware Company (the "Merger"), and the Delaware Company shall be the surviving
corporation (the "Surviving Corporation") effective at 12:01 a.m., on the day
following the date the appropriate certificate reflecting the Merger is filed
with the Secretary of State of the State of Delaware (the "Effective Date").
1.2 SUCCESSION. On the Effective Date, the Delaware Company shall
continue its corporate existence under the laws of the State of Delaware, and
the separate existence and corporate organization of the Nevada Company, except
insofar as it may be continued by operation of law, shall be terminated and
cease.
1.3 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date (i)
the rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the Constituent Corporations; (ii)
all and singular rights, privileges, powers and franchises of each of the
Constituent Corporations, and all property, real, personal and mixed, of each of
the Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and (iii) all property, rights, privileges, powers and
franchises, and all and every other interest, thereafter shall be the property
of the Surviving Corporation as they
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were of the Constituent Corporations, and the title to any real estate vested by
deed or otherwise in either of the Constituent Corporations shall not revert or
be in any way impaired by reason of the Merger; provided, however, that the
liabilities of the Constituent Corporations and of their stockholders, directors
and officers shall not be affected and all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired, and any claim existing or action or proceeding pending by or against
either of the Constituent Corporations may be prosecuted to judgment as if the
Merger had not been consummated, except as they may be modified with the consent
of such creditors, and all debts, liabilities and duties of or upon each of the
Constituent Corporations shall 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.
1.4 COMMON STOCK OF THE NEVADA COMPANY AND THE DELAWARE COMPANY.
On the Effective Date, by virtue of the Merger and without any further action on
the part of the Constituent Corporations or their respective stockholders, (i)
each share of Common Stock of the Nevada Company issued and outstanding
immediately prior thereto shall be combined, changed and converted into one (1)
share of Common Stock of the Delaware Company, in each case fully paid and
nonassessable, (ii) each share of Common Stock of the Delaware Company issued
and outstanding immediately prior thereto shall be canceled and returned to the
status of authorized but unissued shares, and (iii) each share of Series B
Convertible Preferred Stock of the Nevada Company issued and outstanding
immediately prior thereto shall be combined, changed and converted into one (1)
share of Series B Convertible Preferred Stock of the Delaware Company, in each
case fully paid and nonassessable.
1.5 STOCK CERTIFICATES. On and after the Effective Date, all of
the outstanding certificates that, prior to that time, represented shares of
Common Stock of the Nevada Company shall be deemed for all purposes to evidence
ownership of and to represent the shares of the Delaware Company into which the
shares of the Nevada Company represented by such certificates have been
converted as herein provided and shall be so registered on the books and records
of the Surviving Corporation or its transfer agents. The registered owner of any
such outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or its transfer agent, have and be entitled to exercise
any voting and other rights with respect to and to receive any dividend and
other distribution upon the shares of the Delaware Company evidenced by such
outstanding certificate as above provided.
1.6 PURCHASE RIGHTS. On the Effective Date, the Surviving
Corporation will assume the outstanding obligations of the Nevada Company, if
any, to issue Common Stock or other capital stock pursuant to contractual
purchase rights granted by the Nevada Company, and the outstanding and
unexercised portions of all outstanding contractual rights to purchase Common
Stock or other capital stock of the Nevada Company shall be changed and
converted into contractual rights to purchase Common Stock or other capital
stock, respectively, of the Delaware Company such that a contractual right to
purchase one (1) share of Common Stock or other capital stock of the Nevada
Company shall be converted into a contractual right to purchase one (1) share of
Common Stock or other capital stock, respectively, of the Delaware Company. No
other changes in the terms and conditions of such contractual purchase rights
will occur.
1.7 EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving
Corporation shall assume all obligations of the Nevada Company under any and all
employee benefit plans in effect as of such date with respect to which employee
rights or accrued benefits are outstanding as of such date. On the Effective
Date, the Surviving Corporation shall adopt and
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continue in effect all such employee benefit plans upon the same terms and
conditions as were in effect immediately prior to the Merger.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation of the Delaware Company in effect on the Effective Date shall
continue to be the Certificate of Incorporation of the Surviving Corporation
without change or amendment until further amended in accordance with the
provisions thereof and applicable law. The Bylaws of the Delaware Company in
effect on the Effective Date shall continue to be the Bylaws of the Surviving
Corporation without change or amendment until further amended in accordance with
the provisions thereof and applicable law.
2.2 DIRECTORS. The directors of the Nevada Company immediately
preceding the Effective Date shall become the directors of the Surviving
Corporation on and after the Effective Date to serve until the expiration of
their terms and until their successors are elected and qualify.
2.3 OFFICERS. The officers of the Nevada Company immediately
preceding the Effective Date shall become the officers of the Surviving
Corporation on and after the Effective Date to serve at the pleasure of its
Board of Directors.
3. MISCELLANEOUS.
3.1 FURTHER ASSURANCES. From time to time, and when required by
the Surviving Corporation or by its successors and assigns, the Surviving
Corporation shall execute and deliver, or cause to be executed and delivered,
such deeds and other instruments, and the Surviving Corporation shall take or
cause to be taken such further and other action as shall be appropriate or
necessary in order to vest or perfect in or to conform of record or otherwise,
in the Surviving Corporation the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of the Delaware Company and otherwise to carry out the purposes of
this Merger Agreement, and the officers and directors of the Surviving
Corporation are authorized fully in the name and on behalf of the Delaware
Company or otherwise to take any and all such action and to execute and deliver
any and all such deeds and other instruments.
3.2 AMENDMENT. At any time before or after approval by the
stockholders of the Nevada Company, this Merger Agreement may be amended in any
manner (except that, after the approval of the Merger Agreement by the
stockholders of the Nevada Company, the principal terms may not be amended
without the further approval of the stockholders of the Nevada Company) as may
be determined in the judgment of the respective Board of Directors of the
Delaware Company and the Nevada Company to be necessary, desirable, or expedient
in order to clarify the intention of the parties hereto or to effect or
facilitate the purpose and intent of this Merger Agreement.
3.3 CONDITIONS TO MERGER. The obligation of the Constituent
Corporations to effect the transactions contemplated hereby is subject to
satisfaction of the following conditions (any or all of which may be waived by
either of the Constituent Corporations in its sole discretion to the extent
permitted by law):
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(i) the Merger shall have been approved by the stockholders
of the Nevada Company in accordance with applicable provisions of the Nevada
General Corporation Law; and
(ii) the Nevada Company, as sole stockholder of the Delaware
Company, shall have approved the Merger in accordance with the Delaware General
Corporation Law; and
(iii) any and all consents, permits, authorizations,
approvals, and orders deemed in the sole discretion of the Nevada Company to be
material to consummation of the Merger shall have been obtained.
3.4 ABANDONMENT OR DEFERRAL. Notwithstanding the approval of this
Merger Agreement by the stockholders of the Nevada Company or the Delaware
Company, at any time before the Effective Date, (a) this Merger Agreement may be
terminated and the Merger may be abandoned by the Board of Directors of either
the Nevada Company or the Delaware Company or both or (b) the consummation of
the Merger may be deferred for a reasonable period of time if, in the opinion of
the Boards of Directors of the Nevada Company and the Delaware Company, such
action would be in the best interests of such corporations. In the event of
termination of this Merger Agreement, this Merger Agreement shall become void
and of no effect and there shall be no liability on the part of either
Constituent Corporation or their respective Board of Directors or stockholders
with respect thereto, except that the Nevada Company shall pay all expenses
incurred in connection with the Merger or in respect of this Merger Agreement or
relating thereto.
3.5 COUNTERPARTS. In order to facilitate the filing and recording
of this Merger Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by the Board of Directors of the Nevada Company and the Delaware
Company, hereby is executed on behalf of each such corporations and attested by
their respective officers thereunto duly.
9278 COMMUNICATION, INC.,
A NEVADA CORPORATION
By: /s/ Xxxx Xxxxxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxxxxx
Title: President
9278 COMMUNICATIONS, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
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