AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of June 14, 2000 (the
"Agreement") is by and among TELECOM WIRELESS CORPORATION, a Delaware
corporation (the "Corporation"), and Telecom Wireless Corporation, a Utah
corporation ("Telecom"). The Corporation and Telecom are sometimes referred to
herein as the "Constituent Corporations."
WHEREAS, Telecom is a corporation duly organized and existing under the
laws of the State of Utah and has authorized capital of 125,000,000 shares which
consists of (i) 100,000,000 shares of common stock, par value $.001 per share
("Telecom Common Stock"), and (ii) 25,000,000 shares of preferred stock, par
value $.001 per share ("Telecom Preferred Stock"). The Telecom Preferred Stock
includes a single series of preferred stock which is designated as Redeemable,
Non-Voting, Convertible Preferred Stock Series 1998-1 ("1998-1 Preferred
Stock"). As of June 9, 2000, 25,876,436 shares of Telecom Common Stock and
20,000 shares of Telecom 1998-1 Preferred Stock were issued and outstanding;
WHEREAS, The Corporation is a corporation duly organized and existing under
the laws of the State of Delaware. The Corporation has an authorized capital of
125,000,000 shares consisting of (i) 100,000,000 shares of common stock, par
value $0.001 per share (the "Corporation Common Stock"), and 25,000,000 shares
of preferred stock, par value $0.001 per share (the "Corporation Preferred
Stock"). The Corporation Preferred Stock includes a single series of preferred
stock which is designated as Redeemable, Non-Voting, Convertible Preferred Stock
Series 1998-1. As of June 9, 2000, 100 shares of the Corporation Common Stock
were issued and outstanding and no shares of the Corporation Preferred Stock
were issued and outstanding;
WHEREAS, the designations, rights and preferences, and qualifications,
limitations and restrictions of the Telecom Common Stock are the same as those
of the Corporation Common Stock;
WHEREAS, the Certificate of Incorporation and Bylaws of the Corporation in
effect at the time of the Merger shall become the Certificate of Incorporation
and Bylaws of the Surviving Corporation immediately after the Effective Date (as
hereinafter defined).
WHEREAS, the directors and executive officers of Telecom immediately prior
to the Merger (as hereinafter defined) will be the directors and executive
officers of the Corporation as of the Effective Date.
WHEREAS, the Corporation is a newly formed corporation organized for the
purpose of participating in the transactions herein contemplated;
WHEREAS, Telecom desires to reincorporate in the State of Delaware by
merging Telecom with and into the Corporation, with (a) the Corporation
continuing as the surviving corporation of such merger and (b) each outstanding
share (or fraction thereof) of Telecom Common Stock being converted in such
merger into a like number of the Corporation Common Stock, all in accordance
with the terms of this Agreement (the "Merger"); and
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WHEREAS, the boards of directors of Telecom and the Corporation have
approved this Agreement and the Merger upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, the Corporation and Telecom hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
1. THE MERGER
1.1. The Merger.
In accordance with the provisions of this Agreement, the Delaware General
Corporation Law and the Utah Revised Business Corporation Act, Telecom shall be
merged with and into the Corporation, the separate existence of Telecom shall
cease and the Corporation shall survive the Merger and shall continue to be
governed by the laws of the State of Delaware, and the Corporation shall be, and
is herein sometimes referred to as, the "Surviving Corporation." The name of the
Surviving Corporation shall be TELECOM WIRELESS CORPORATION.
1.2. Filing and Effectiveness.
The Merger shall become effective when the following actions shall have
been completed:
(a) This Agreement and Merger shall have been adopted and approved by the
stockholders of each Constituent Corporation in accordance with the requirements
of the Delaware General Corporation Law and the Utah Revised Business
Corporation Act;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof; and
(c) An executed counterpart of this Agreement meeting the requirements of
the Delaware General Corporation Law or Certificate of Merger as required by
Section 252 of the Delaware General Corporation Law shall have been filed with
the Secretary of State of the State of Delaware.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date."
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1.3. Effect of the Merger.
Upon the Effective Date, the separate existence of Telecom shall cease and
the Corporation, as the Surviving Corporation, (i) shall continue to possess all
of its assets, rights, powers and property as constituted immediately prior to
the Effective Date, (ii) shall be subject to all actions previously taken by the
Corporation's and Telecom's Boards of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of Telecom in
the manner more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of the Corporation as constituted immediately prior
to the Effective Date, and (v) shall succeed, without other transfer, to all of
the debts, liabilities and obligations of Telecom in the same manner as if the
Corporation had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the Utah
Revised Business Corporation Act.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1. Certificate of Incorporation.
The Certificate of Incorporation of the Corporation as in effect
immediately prior to the Effective Date shall continue in full force and effect
as the Certificate of Incorporation of the Surviving Corporation until duly
amended in accordance with the provisions thereof and applicable law.
2.2. Bylaws.
The Bylaws of the Corporation as in effect immediately prior to the
Effective Date shall continue in full force and effect as the Bylaws of the
Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
2.3. Directors and Officers.
The directors and officers of Telecom immediately prior to the Effective
Date shall be the directors and officers of the Surviving Corporation until
their successors shall have been duly elected and qualified or until as
otherwise provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
3. MANNER OF CONVERSION OF STOCK
3.1. Telecom Stock.
(a) Upon the Effective Date, each share of Telecom Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such shares or any
other person, be converted into and exchanged for one (1) fully paid and
nonassessable share of Common Stock, par value $0.001 per share, of the
Surviving Corporation.
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(b) Upon the Effective Date, each share of Telecom Preferred Stock issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by the Constituent Corporations, the holder of such shares or
any other person, be converted into and exchanged for one (1) fully paid and
nonassessable share of Preferred Stock, par value $0.001 per share, of the
Surviving Corporation.
3.2. Telecom Options, Stock Purchase Rights and Convertible Securities.
(a) Upon the Effective Date, the Surviving Corporation shall assume and
continue the stock option plans and all other employee benefit plans of Telecom.
Each outstanding and unexercised option or other right to purchase or security
convertible into Telecom Common Stock shall become an option or right to
purchase or a security convertible into the Surviving Corporation's common stock
on the basis of one share of the Surviving Corporation's common stock for each
share of Telecom Common Stock issuable pursuant to any such option, stock
purchase right or convertible security, on the same terms and conditions and at
an exercise price per share equal to the exercise price applicable to any such
Telecom option, stock purchase right or convertible security at the Effective
Date. There are no options, purchase rights for or securities convertible into
Preferred Stock of Telecom.
(b) A number of shares of the Surviving Corporation's common stock shall be
reserved for issuance upon the exercise of options, stock purchase rights and
convertible securities equal to the number of shares of Telecom Common Stock so
reserved immediately prior to the Effective Date.
3.3. The Corporation Common Stock.
Upon the Effective Date, each share of Common Stock, par value $0.001 per
share, of the Corporation issued and outstanding immediately prior thereto
shall, by virtue of the Merger be cancelled and retired and cease to exist.
3.4 Exchange of Certificates.
After the Effective Date, each holder of an outstanding certificate
representing shares of Telecom Common Stock or Telecom Preferred Stock may, at
such stockholder's option, surrender the same for cancellation to Corporate
Stock Transfer, as exchange agent (the "Exchange Agent"), and each such holder
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Corporation Common Stock into which the
surrendered shares were converted as herein provided. Unless and until so
surrendered, each outstanding certificate theretofore representing shares of
Telecom Common Stock shall be deemed for all purposes to represent the number of
shares of the Corporation Common Stock into which such shares of Telecom Common
Stock were converted in the Merger. No fractional shares shall be issued but,
rather, shall be rounded up to the next nearest whole share.
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Each certificate representing Common Stock of the Corporation so issued in
the Merger shall bear the same legends, if any, with respect to the restrictions
on transferability as the certificates of Telecom, unless otherwise determined
by the Board of Directors of the Surviving Corporation in compliance with
applicable laws, or other such additional legends as agreed upon by the holder
and the Corporation.
If any certificate for shares of the Corporation stock is to be issued in a
name other than that in which the certificate surrendered in exchange therefor
is registered, it shall be a condition of issuance thereof that the certificate
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and comply with applicable
securities laws and that the person requesting such transfer pay to the
Surviving Corporation or the Exchange Agent any transfer or other taxes payable
by reason of issuance of such new certificate in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of the Surviving Corporation that such tax has been paid or is not
payable.
4. GENERAL
4.1. Covenants of the Corporation.
The Corporation covenants and agrees that it will, on or before the
Effective Date:
(a) file any and all documents necessary for the assumption by the
Corporation of all of the franchise tax liabilities of Telecom;
(b) file an executed counterpart of this Agreement meeting the requirements
of the Utah Revised Business Corporation Act with the Secretary of State of the
State of Utah; and
(c) take such other actions as may be required by the Utah Revised Business
Corporation Act.
4.2. Further Assurances.
From time to time, as and when required by the Corporation or by its
successors or assigns, there shall be executed and delivered on behalf of
Telecom such deeds and other instruments, and there shall be taken or caused to
be taken by the Corporation and Telecom such further and other actions as shall
be appropriate or necessary in order to vest or perfect in or conform of record
or otherwise by the Corporation the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Telecom and otherwise to carry out the purposes of this Agreement,
and the officers and directors of Telecom Delaware are fully authorized in the
name and on behalf of Telecom or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
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4.3. Abandonment.
At any time before the Effective Date, this Agreement may be terminated and
the Merger may be abandoned for any reason whatsoever by the Board of Directors
of either Telecom or of the Corporation, or of both, notwithstanding the
approval of this Agreement by the shareholders of Telecom or the Corporation, or
by both.
4.4. Amendment.
The Boards of Directors of the Constituent Corporations may amend this
Agreement at any time prior to the filing of this Agreement or appropriate
Certificate with the Secretaries of State of the States of Delaware and Utah,
provided that an amendment made subsequent to the adoption of this Agreement by
the stockholders of either Constituent Corporation shall not, unless approved by
the stockholders as required by law: (a) alter or change the amount or kind of
shares, securities, cash, property 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; (b) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger; or (c)
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 or series
of capital stock of any Constituent Corporation.
4.5. Registered Office.
The registered office of the Surviving Corporation in the State of Delaware
is 1209 Orange Street, City of Wilmington and County of New Castle and The
Corporation Trust Company is the registered agent of the Surviving Corporation
at such address.
4.6. Agreement.
Executed copies of this Agreement will be on file at the principal place of
business of the Surviving Corporation at 5299 DTC Boulevard, Suite 1120,
Englewood, Colorado 80111 and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
4.7. Governing Law.
This Agreement shall in all respects be construed, interpreted and enforced
in accordance with and governed by the laws of the State of Delaware and, so far
as applicable, the merger provisions of the Utah Revised Business Corporation
Act.
4.8. Counterparts.
In order to facilitate the filing and recording of this Agreement, the same
may be executed in any number of counterparts, each of which shall be deemed to
be an original and all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
TELECOM WIRELESS CORPORATION,
A Delaware corporation
By: ________________________________
Name: _______________________
Title: ______________________
TELECOM WIRELESS CORPORATION,
A Utah corporation
By: ________________________________
Name: _______________________
Title: ______________________
