AGREEMENT AND PLAN OF MERGER
----------------------------
This Agreement is made and entered into as of this 27 day of
September, 1996 pursuant to Section 33-371 of the Connecticut General Statutes
and Section 252 of the Delaware General Corporation Law, by and between
International Telecommunication Data Systems, Inc., a Delaware corporation
("ITDS (Delaware)"), and International Telecommunication Data Systems, Inc., a
Connecticut corporation ("ITDS (Connecticut)").
WITNESSETH:
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WHEREAS, ITDS (Delaware) and ITDS (Connecticut) (individually
sometimes called a "Constituent Corporation" and together called the
"Constituent Corporations") desire that ITDS (Connecticut) merge with and into
ITDS (Delaware), a wholly-owned subsidiary of ITDS (Connecticut) (such
transaction hereinafter referred to as the "Merger");
WHEREAS, ITDS (Connecticut) was incorporated in Connecticut on May
11, 1990, and has an authorized capital stock of 100,000 shares of Common Stock,
no par value per share (the "ITDS (Connecticut) Common Stock"), of which 6,094
shares were issued and outstanding as of the date hereof, and 2,300 shares of
Preferred Stock, of which 50 shares are designated as Class A Preferred Stock of
ITDS (Connecticut) (the "ITDS (Connecticut) Class A Preferred Stock"), 18 of
which are issued and outstanding as of the date hereof; 2,000 shares are
designated as Class B Preferred Stock of ITDS (Connecticut) (the "ITDS
(Connecticut) Class B Preferred Stock"), 1,500 of which are issued and
outstanding as of the date hereof; and 250 shares are designated as Class C
Convertible Preferred Stock of ITDS (Connecticut) (the "ITDS (Connecticut) Class
C Preferred Stock"), 129 of which are issued and outstanding as of the date
hereof;
WHEREAS, the Certificate of Incorporation of ITDS (Delaware) was
filed in the office of the Secretary of the State of Delaware on August 28,
1996, and ITDS (Delaware) has authorized capital stock of 40,000,000 shares of
Common Stock, $.01 par value per share ("ITDS (Delaware) Common Stock"), 100 of
which are issued and outstanding and held by ITDS (Connecticut), and 2,000,000
shares of Preferred Stock, $.01 par value per share, none of which are issued
and outstanding, of which 250 shares are designated as Series C Convertible
Preferred Stock of ITDS (Delaware) (the "ITDS (Delaware) Series C Preferred
Stock"), none of which are issued and outstanding;
WHEREAS, the registered office of ITDS (Delaware) in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware and the name and address of its registered agent is The Corporation
Trust Company; and the registered principal office of ITDS (Connecticut) in the
State of Connecticut is located at 000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxxx; and
WHEREAS, the respective Boards of Directors of the Constituent
Corporations desire that the Merger provided for herein be a tax-free
reorganization pursuant to Section 368(a) of the Internal Revenue Code of 1986,
as amended;
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and provisions hereinafter contained, the Constituent Corporations do hereby
prescribe the terms and conditions of said Merger and mode of carrying the same
into effect as follows:
FIRST: ITDS (Delaware) shall merge into itself ITDS (Connecticut),
and ITDS (Connecticut) shall merge into ITDS (Delaware), which shall be the
surviving corporation in the Merger (the "Surviving Corporation").
SECOND: The Certificate of Incorporation of ITDS (Delaware) as in
effect on the date of the Merger provided for in this Agreement, shall continue
in full force and effect as the Certificate of Incorporation of the Surviving
Corporation.
THIRD: The manner of converting the outstanding shares of the capital
stock of each of the Constituent Corporations into the shares or other
securities of the Surviving Corporation shall be as follows:
(a) Each share of ITDS (Delaware) Common Stock that is
issued and outstanding immediately prior to the date on which the Merger shall
become effective shall, by virtue of the Merger and without further action,
cease to exist and all certificates representing such shares shall be cancelled.
(b) Each share of ITDS (Connecticut) Common Stock that is
issued and outstanding (other than shares of ITDS (Connecticut) Common Stock, if
any, held in the treasury of ITDS (Connecticut) and Dissenting Shares (as
defined below)) on the date on which the Merger shall become effective shall, by
virtue of the Merger and without further action, cease to exist and shall be
converted into 800 shares of ITDS (Delaware) Common Stock. There shall not be
any issued and outstanding shares of ITDS (Connecticut) Common Stock that will
not be so converted or exchanged. No fractional
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shares of ITDS (Delaware) Common Stock shall be issued pursuant to such
conversion; any fractional shares that would otherwise have been issued to a
stockholder of ITDS (Connecticut) shall instead be rounded down to the nearest
whole number.
(c) Each share of ITDS (Connecticut) Class A Preferred
Stock that is issued and outstanding (other than shares of ITDS (Connecticut)
Class A Preferred Stock, if any, held in the treasury of ITDS (Connecticut) and
Dissenting Shares) on the date on which the Merger shall become effective shall,
by virtue of the Merger and without further action, cease to exist and shall be
converted into 29,156 shares of ITDS (Delaware) Common Stock. There shall not be
any issued and outstanding shares of ITDS (Connecticut) Class A Preferred Stock
that will not be so converted or exchanged. No fractional shares of ITDS
(Delaware) Common Stock shall be issued pursuant to such conversion; any
fractional shares that would otherwise have been issued to a stockholder of ITDS
(Connecticut) shall instead be rounded down to the nearest whole number. In
addition, each holder of the ITDS (Connecticut) Class A Preferred Stock shall be
entitled to receive for each share of ITDS (Connecticut) Class A Preferred Stock
held by such holder a promissory note in the original principal amount of
$25,000 issued by ITDS (Delaware) in the form attached hereto as Exhibit A.
(d) Each share of ITDS (Connecticut) Class B Preferred
Stock that is issued and outstanding (other than shares of ITDS (Connecticut)
Class B Preferred Stock, if any, held in the treasury of ITDS (Connecticut) and
Dissenting Shares) on the date on which the Merger shall become effective shall,
by virtue of the Merger and without further action, cease to exist and shall be
converted into 218.67 shares of ITDS (Delaware) Common Stock. There shall not be
any issued and outstanding shares of ITDS (Connecticut) Class B Preferred Stock
that will not be so converted or exchanged. No fractional shares of ITDS
(Delaware) Common Stock shall be issued pursuant to such conversion; any
fractional shares that would otherwise have been issued to a stockholder of ITDS
(Connecticut) shall instead be rounded down to the nearest whole number. In
addition, each holder of the ITDS (Connecticut) Class B Preferred Stock shall be
entitled to receive for each share of ITDS (Connecticut) Class B Preferred Stock
held by such holder, a promissory note in the original principal amount of $250
issued by ITDS (Delaware) in the form attached hereto as Exhibit B.
(e) Each share of ITDS (Connecticut) Series C Preferred
Stock that is issued and outstanding (other than shares of ITDS (Connecticut)
Series C Preferred Stock, if any, held in the
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treasury of ITDS (Connecticut) and Dissenting Shares) on the date on which the
Merger shall become effective shall, by virtue of the Merger and without further
action, cease to exist and shall be converted into one share of ITDS (Delaware)
Series C Preferred Stock. There shall not be any issued and outstanding shares
of ITDS (Connecticut) Class C Preferred Stock that will not be so converted or
exchanged. No fractional shares of ITDS (Delaware) Series C Preferred Stock
shall be issued pursuant to such conversion; any fractional shares that would
otherwise have been issued to a stockholder of ITDS (Connecticut) shall instead
be rounded down to the nearest whole number.
(f) Each share of ITDS (Connecticut) Common Stock, ITDS
(Connecticut) Class A Preferred Stock, ITDS (Connecticut) Class B Preferred
Stock or ITDS (Connecticut) Class C Preferred Stock, if any, that shall then be
held in the treasury of ITDS (Connecticut) on the effective date of the Merger
shall by virtue of the Merger and without further action, cease to exist and all
certificates representing such shares shall be cancelled.
(g) For purposes of this Agreement, "Dissenting Shares"
means shares of stock of ITDS (Connecticut) held as of the Effective Date by a
shareholder who has delivered to ITDS (Connecticut) written notice demanding
payment for his or her shares in accordance with Section 33-373 of the
Connecticut General Statutes. Dissenting Shares shall not be converted into or
represent the right to receive shares of ITDS (Delaware).
(h) After the effective date of the Merger, each holder of
an outstanding certificate representing shares of ITDS (Connecticut) stock shall
surrender the same to ITDS (Delaware) and each holder shall be entitled upon
such surrender to receive certificates for the number of shares of ITDS
(Delaware) stock on the basis provided herein. Until so surrendered, the
outstanding shares of the capital stock of ITDS (Connecticut) converted into the
capital stock of ITDS (Delaware) as provided herein, may be treated by ITDS
(Delaware) for all corporate purposes as evidencing the ownership of shares of
ITDS (Delaware), as though said surrender and exchange had taken place.
FOURTH: The terms and conditions of the Merger are as follows:
(a) The By-laws of ITDS (Delaware) as they shall exist on
the effective date of the Merger shall be and remain the By-laws of the
Surviving Corporation until the same shall be altered, amended or repealed as
therein provided.
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(b) The directors and officers of ITDS (Delaware)
immediately prior to the effective date of the Merger shall be the directors and
officers of the Surviving Corporation as of the effective date of this Merger,
and shall continue to hold office in accordance with the By-laws of the
Surviving Corporation.
(c) The Merger shall become effective upon filing with the
Secretary of the State of Delaware this Agreement, or a Certificate of Merger in
lieu thereof, pursuant to Section 252 of the General Corporation Law of the
State of Delaware and with the Secretary of the State of Connecticut a
Certificate of Merger pursuant to Section 33-367 of the Connecticut General
Statutes.
(d) Upon the effective date of the Merger, all property,
rights, privileges, franchises, patents, trademarks, licenses, registrations,
and other assets of every kind and description of ITDS (Connecticut) shall be
transferred to, vested in and devolved upon ITDS (Delaware) without further act
or deed and all property rights, and every other interest of ITDS (Delaware) and
ITDS (Connecticut) shall be as effectively the property of ITDS (Delaware) as
they were of ITDS (Delaware) and ITDS (Connecticut), respectively. All rights of
creditors of ITDS (Connecticut) and all liens upon any property of ITDS
(Connecticut) shall be preserved unimpaired, and all debts, liabilities and
duties of ITDS (Connecticut) shall attach to ITDS (Delaware) and may be enforced
against it to the same extent as if said debts, liabilities and duties had been
incurred or contracted by it. At any time, and from time to time, after the
effective date of the Merger, the last acting officers of ITDS (Connecticut), or
the corresponding officers of ITDS (Delaware), may, in the name of ITDS
(Connecticut), execute and deliver or cause to be executed and delivered all
such deeds and instruments and to take or cause to be taken such further or
other actions as ITDS (Delaware) may deem necessary or desirable in order to
vest in ITDS (Delaware) title to and possession of any property of ITDS
(Connecticut) acquired or to be acquired by reason of or as a result of the
Merger herein provided for and otherwise to carry out the intents and purposes
hereof, and the proper officers and directors of ITDS (Delaware) are fully
authorized in the name of ITDS (Connecticut) or otherwise to take any and all
such action.
(e) ITDS (Delaware) hereby (i) agrees that it may be served
with process in the State of Connecticut in any proceeding for the enforcement
of any obligation of ITDS (Connecticut) and in any proceeding for the
enforcement of the rights of a dissenting stockholder of ITDS (Connecticut)
pursuant to Section 33-373 of the Connecticut General Statutes; (ii) irrevocably
appoints the
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Secretary of the State of Connecticut as its agent to accept service of process
in any such proceeding and (iii) agrees that it will promptly pay to the
dissenting shareholders of ITDS (Connecticut) the amounts, if any, to which they
are entitled under the Connecticut General Statutes.
FIFTH: Anything herein or elsewhere to the contrary notwithstanding,
this Agreement may be terminated and abandoned by the Boards of Directors of the
Constituent Corporations at any time prior to the date that the requisite
certificates are filed in the office of the Secretary of the State of Delaware
and the office of the Secretary of the State of Connecticut. This Agreement may
be amended by the Boards of Directors of the Constituent Corporations at any
time prior to the date on which the requisite certificates are filed in the
office of the Secretary of the State of Delaware and the office of the Secretary
of the State of Connecticut, provided that an amendment made subsequent to the
approval of this Agreement by the stockholders of either Constituent Corporation
shall not (i) alter or change the amount or kind of shares, securities and/or
rights to be received in exchange for or on conversion of all or any of the
shares of any class or series thereof of such Constituent Corporation, (ii)
alter or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger, or (iii) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class of stock of such Constituent
Corporation.
SIXTH: (a) This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of Delaware.
(b) ITDS (Delaware) and ITDS (Connecticut) each agrees to
execute and deliver such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary or desirable in
order to consummate or implement the transactions contemplated by this
Agreement.
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by resolutions adopted by their respective
Boards of Directors, have caused these presents to be executed by the President
and attested to by the Secretary of each party hereto as the respective act,
deed and agreement of each of said corporation, as of the date first written
above.
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INTERNATIONAL TELECOMMUNICATION
DATA SYSTEMS, INC.
ATTEST: (a Delaware corporation)
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------ --------------------
Xxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Secretary President
[CORPORATE SEAL]
INTERNATIONAL TELECOMMUNICATION
DATA SYSTEMS, INC.
ATTEST: (a Connecticut corporation)
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------ --------------------
Xxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Secretary President
[CORPORATE SEAL]
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EXHIBITS
to
Merger Agreement
Exhibit A Form of Promissory Note for holders of Class A
Preferred Stock
Exhibit B Form of Promissory Note for holders of Class B
Preferred Stock
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EXHIBIT A
---------
PROMISSORY NOTE
---------------
September __, 1996
$[_____] Stamford, Connecticut
FOR VALUE RECEIVED, International Telecommunication Data Systems,
Inc., a Delaware corporation (the "Maker"), promises to pay to _______________,
or order, at the offices of the Maker or at such other place as the holder of
this Note may designate, the principal sum of $[______], with no interest.
Principal shall be paid as follows:
Principal shall be paid on the earlier of (i) the date two years from
the date of this Note or (ii) the closing of an underwritten initial
public offering of the Common Stock of International
Telecommunication Data Systems, Inc. pursuant to an effective
registration statement under the Securities Act of 1933, as amended.
This is one of a series of notes of the Maker (collectively referred
to herein as the "Notes"), all of like tenor, except as to the name of the
holder and the principal amount. The Notes are issued or issuable to former
holders of Class A and Class B Preferred Stock of International
Telecommunication Data Systems, Inc., a Connecticut corporation, the predecessor
corporation of the Maker.
This Note shall become immediately due and payable without notice or
demand upon the occurrence at any time of any of the following events of default
(individually, "an Event of Default" and collectively, "Events of Default"):
(1) the liquidation, termination of existence, dissolution,
insolvency or business failure of the Maker, or the
appointment of a receiver or custodian for the Maker or any
part of its property if such appointment is not terminated
or dismissed within sixty (60) days;
(2) the institution against the Maker or any indorser or
guarantor of this Note of any proceedings under the United
States Bankruptcy Code or any other federal or state
bankruptcy, reorganization, receivership, insolvency or
other similar law affecting the rights of creditors
generally, which proceeding is not dismissed within sixty
(60) days of filing;
(3) the institution by the Maker or any indorser or guarantor
of this Note of any proceedings under the United States
Bankruptcy Code or any other federal or state bankruptcy,
reorganization, receivership,
insolvency or other similar law affecting the rights of
creditors generally or the making by the Maker or any
indorser or guarantor of this Note of a composition or an
assignment or trust mortgage for the benefit of creditors.
Upon the occurrence of an Event of Default, the holder shall have
then, or at any time thereafter, all of the rights and remedies afforded by the
Uniform Commercial Code as from time to time in effect in the state of
Connecticut or afforded by other applicable law.
No delay or omission on the part of the holder in exercising any
right under this Note shall operate as a waiver of such right or of any other
right of such holder, nor shall any delay, omission or waiver on any one
occasion be deemed a bar to or waiver of the same or any other right on any
future occasion. The Maker and every indorser of this Note regardless of the
time, order or place of signing waives presentment, demand, protest and notices
of every kind and assents to any extension or postponement of the time of
payment or any other indulgence and to the addition or release of any other
party or person primarily or secondarily liable.
This Note may be prepaid in whole or in part at any time or from time
to time without notice and without the consent of the holder. Any such
prepayment shall be without premium or penalty.
The terms and provisions of this Note may be excluded, modified or
amended by a written instrument duly executed on behalf of the Maker and the
holder expressly referring to this Note and setting forth the provision so
excluded, modified or amended. The terms and provisions of each of the Notes may
be excluded, modified or amended by a written instrument duly executed by the
Maker and the holder of Notes representing at least 50% of the aggregate
principal amount of the outstanding Notes.
All rights and obligations hereunder shall be governed by the state
of Connecticut and this Note is executed as an instrument under seal.
ATTEST: INTERNATIONAL TELECOMMUNICATION
DATA SYSTEMS, INC.
By:________________________ By:_______________________
Title:_____________________ Title:____________________
EXHIBIT B
---------
PROMISSORY NOTE
September __, 1996
$[_____] Stamford, Connecticut
FOR VALUE RECEIVED, International Telecommunication Data Systems,
Inc., a Delaware corporation (the "Maker"), promises to pay to _______________,
or order, at the offices of the Maker or at such other place as the holder of
this Note may designate, the principal sum of $[______], with no interest.
Principal shall be paid as follows:
Principal shall be paid on the earlier of (i) the date two years from
the date of this Note or (ii) the closing of an underwritten initial
public offering of the Common Stock of International
Telecommunication Data Systems, Inc. pursuant to an effective
registration statement under the Securities Act of 1933, as amended.
This is one of a series of notes of the Maker (collectively referred
to herein as the "Notes"), all of like tenor, except as to the name of the
holder and the principal amount. The Notes are issued or issuable to former
holders of Class A and Class B Preferred Stock of International
Telecommunication Data Systems, Inc., a Connecticut corporation, the predecessor
corporation of the Maker.
This Note shall become immediately due and payable without notice or
demand upon the occurrence at any time of any of the following events of default
(individually, "an Event of Default" and collectively, "Events of Default"):
(1) the liquidation, termination of existence, dissolution,
insolvency or business failure of the Maker, or the
appointment of a receiver or custodian for the Maker or any
part of its property if such appointment is not terminated
or dismissed within sixty (60) days;
(2) the institution against the Maker or any indorser or
guarantor of this Note of any proceedings under the United
States Bankruptcy Code or any other federal or state
bankruptcy, reorganization, receivership, insolvency or
other similar law affecting the rights of creditors
generally, which proceeding is not dismissed within sixty
(60) days of filing;
(3) the institution by the Maker or any indorser or guarantor
of this Note of any proceedings under the United States
Bankruptcy Code or any other federal or state bankruptcy,
reorganization, receivership,
insolvency or other similar law affecting the rights of
creditors generally or the making by the Maker or any
indorser or guarantor of this Note of a composition or an
assignment or trust mortgage for the benefit of creditors.
Upon the occurrence of an Event of Default, the holder shall have
then, or at any time thereafter, all of the rights and remedies afforded by the
Uniform Commercial Code as from time to time in effect in the state of
Connecticut or afforded by other applicable law.
No delay or omission on the part of the holder in exercising any
right under this Note shall operate as a waiver of such right or of any other
right of such holder, nor shall any delay, omission or waiver on any one
occasion be deemed a bar to or waiver of the same or any other right on any
future occasion. The Maker and every indorser of this Note regardless of the
time, order or place of signing waives presentment, demand, protest and notices
of every kind and assents to any extension or postponement of the time of
payment or any other indulgence and to the addition or release of any other
party or person primarily or secondarily liable.
This Note may be prepaid in whole or in part at any time or from time
to time without notice and without the consent of the holder. Any such
prepayment shall be without premium or penalty.
The terms and provisions of this Note may be excluded, modified or
amended by a written instrument duly executed on behalf of the Maker and the
holder expressly referring to this Note and setting forth the provision so
excluded, modified or amended. The terms and provisions of each of the Notes may
be excluded, modified or amended by a written instrument duly executed by the
Maker and the holder of Notes representing at least 50% of the aggregate
principal amount of the outstanding Notes.
All rights and obligations hereunder shall be governed by the state
of Connecticut and this Note is executed as an instrument under seal.
ATTEST: INTERNATIONAL TELECOMMUNICATION
DATA SYSTEMS, INC.
By:________________________ By:_______________________
Title:_____________________ Title:____________________
