|
|
|
|
Document Preview Agreement and Plan of Reorganization |
||||
|
|
||||
|
Click "Add to Cart" button to purchase document. |
||||
|
|
||||
|
Title: |
Agreement and Plan of Reorganization |
|||
|
Entities: |
||||
|
Date: |
2002 |
|||
|
Size: |
Preview shows 23KB of 114KB total |
|||
|
Price: |
$64 |
|||
|
ID: |
#1251881 |
|||
|
|
||||
|
||||
|
|
||||
|
Start of Preview |
||||
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
Moneyzone.com, Inc.,
AND
Quicktest 5, Inc.,
Dated as of July 15, 2002
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and entered
into as of July 15, 2002, by and among Moneyzone.com, Inc., a Delaware
corporation ("MOZN"), and Quicktest 5, Inc., a Delaware corporation (the "Q5").
RECITALS
WHEREAS, the Boards of Directors of each of Q5, and MOZN believe it is in the
best interests of each company and their respective shareholders that MOZN merge
with and into Q5 (the "Merger") and, in furtherance thereof, have approved the
Merger;
WHEREAS, pursuant to the Merger, among other things, all of the issued and
outstanding capital stock of Q5 shall be converted into the right to receive the
consideration set forth herein, and MOZN will assume all outstanding stock
options and warrants of Q5;
WHEREAS, Q5, on the one hand, and MOZN, on the other hand, desire to make
certain representations, warranties, covenants and other agreements in
connection with the Merger; and
WHEREAS, the parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended.
NOW, THEREFORE, in consideration of the covenants, promises and representations
set forth herein, and for other good and valuable consideration, the parties
agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of the Delaware General Corporation Law ("Delaware
Law"), Q5 shall be merged with and
into MOZN, the separate corporate existence of Q5 shall cease and MOZN shall
continue as the surviving corporation and its name shall be changed to QT5, Inc.
The surviving corporation after the Merger is hereinafter sometimes referred to
as the "Surviving Corporation."
1.2 Effective Time. Unless this Agreement is terminated earlier pursuant
to either Sections 5.1 or 7.1 hereof, the
closing of the Merger (the "Closing") will take place as promptly as
practicable, but in any event no later than five (5) business days following the
approval of the Merger by MOZN shareholders and by the stockholders of Q5 and
the satisfaction or waiver of the conditions set forth in Article VI. The date
upon which the Closing occurs is herein referred to as the "Closing
Date." On the Closing Date, the parties hereto shall cause the Merger to be
consummated by filing an Certificate of Merger (or like instrument), with an
officer's certificate of each constituent corporation attached, with the
Secretary of State of the State of Delaware (the "Merger Agreement"), in
accordance with the applicable provisions of Delaware Law (the time of acceptance
by the Secretary of State of the State of Delaware of such filing being referred
to herein as the "Effective Time").
1.3 Effect of the Merger. At the Effective Time, the effect of the Merger shall
be as provided in the applicable provisions of Delaware Law. Without limiting
the generality of the foregoing, and subject thereto, at the Effective Time, the
Surviving Corporation shall possess all the property, rights, privileges, powers
and franchises, and all debts, liabilities and duties of the Surviving
Corporation.
1.4 Articles of Incorporation; Bylaws.
(a) At the Effective Time, the Articles of Incorporation
of the Surviving Corporation shall be amended in full
to read as set forth on Exhibit B attached hereto.
(b) Unless otherwise determined by Q5 prior to the Effective
Time, the Bylaws of Q5, as in effect immediately prior
to the Effective Time, shall be the Bylaws of the
Surviving Corporation at the Effective Time until
thereafter amended in accordance with Delaware Law
and as provided in the Certificate of Incorporation
and such Bylaws.
1.5 Directors and Officers. The directors of Q5 immediately prior to the
Effective Time shall be the directors of the- Surviving Corporation immediately
after the Effective Time, each to hold the office of director of the Surviving
Corporation in accordance with the provisions of Delaware Law and the
Certificate of Incorporation and Bylaws of the Surviving Corporation until his
or her successor is duly qualified and elected. The officers of Q5 immediately
prior to the Effective Time shall be the officers of the Surviving Corporation
immediately after the Effective Time, each to hold office in accordance with the
provisions of the Bylaws of the Surviving Corporation.
1.6 Effect of Merger on the Capital Stock of the Constituent Corporations.
(a) Certain Definitions. For all purposes of this
Agreement, the following terms shall have the following
meanings:
"Q5 Common Stock" shall mean outstanding shares of
common stock of Q5.
"Q5 Options" shall mean all outstanding options or
other rights to purchase shares of Q5 Common Stock
issued pursuant to Q5 Stock Option Plan and all
warrants and other rights to purchase Q5 Common Stock.
"Q5 Stock Option Plan" shall mean Q5's Stock
Incentive Plan.
"GAAP" shall mean U.S. generally accepted
accounting principles.
"Knowledge" shall mean the actual knowledge of
such entity's current officers and directors and the
knowledge that any such officer or director would
have obtained of the matter represented after due and
diligent inquiry thereof under the circumstances.
"MOZN Common Stock" shall mean shares of the common
stock, par value $0.15 per share, of MOZN.
"MOZN Common Stock Consideration" shall mean that
number of shares of MOZN Common Stock equal to the
product of (x) the Stock Exchange Ratio multiplied by
(y) the number of shares of Q5 Common Stock validly
issued and outstanding immediately prior to the
Effective Time.
"Shareholder" shall mean each holder of any Q5 Common
Stock immediately prior to the Effective Time.
"Stock Exchange Ratio" shall mean 1.33.
"Trading Price" shall mean the average closing price
of one share of MOZN Common Stock as reported on the
OTC Bulletin Board for the five (5) consecutive
trading days ending on the trading day immediately
preceding the Effective Date.
(b) Effect on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part
of Q5 or MOZN, or the Shareholders, each share of
Q5 Common Stock issued and outstanding immediately
prior to the Effective Time (other than any Dissenting
Shares (as defined in Section 1.7)) will be canceled
and extinguished and be converted automatically into
the right to receive, upon surrender of the
certificate representing such share of Q5 Common Stock
and upon the terms and subject to the conditions set
forth below and throughout this Agreement, including,
without limitation Sections 1.6(f) and (g) hereof, such
shares of MOZN Common Stock equal to the Stock Exchange
Ratio.
(c) Assumption of Q5 Stock Options, Warrants and Other
Rights to Purchase Q5 Common Stock. At the Effective
Time, under this Agreement, each Q5 Option will
be assumed by MOZN, and will continue to have, and
be subject to, the same terms and conditions governing
such Q5 Option immediately prior to the Effective
Time (including, without limitation, any vesting
schedule or repurchase rights), except that (i) each
Q5 Option will be exercisable (or will become
exercisable in accordance with its terms) for that
number of whole shares of MOZN Common Stock equal
to the product of the number of shares of Q5 Common
Stock that were issuable upon exercise of such Q5
Option immediately prior to the Effective Time
multiplied by the Stock Exchange Ratio, rounded
down to the nearest whole number of shares of MOZN
Common Stock, and (ii) the per share exercise
price for the shares of MOZN Common Stock issuable
upon exercise of such assumed Q5 Option will be equal
to the quotient determined by dividing the exercise
price per share of Q5 Common Stock at which such Q5
Option was exercisable immediately prior to the
Effective Time by the Stock Exchange Ratio, rounded
up to the nearest whole cent. It is the intention
of the parties that the assumed Q5 Options qualify
to the maximum extent possible following the Effective
Time as incentive stock options as defined in
Section 422 of the Code to the extent such options
qualified as incentive stock options prior to the
Effective Time.
(d) Withholding Taxes. All MOZN Common Stock issuable
pursuant to Section 1.6 shall be subject to, and reduced
by, the amount of any state, federal and foreign
withholding taxes incurred by or applicable to a
Shareholder (and that has not been previously paid by
or on behalf of such Shareholder or Q5) in connection
with the Merger, the acquisition of Q5 Common Stock
upon the exercise of Q5 Options, the acceleration of
the vesting of any Q5 Option or any Q5 Common Stock or
the payment of a bonus in the form of Q5 Common Stock.
(e) Fractional Shares. No fractional share of MOZN
Common Stock shall be issued in the Merger. In lieu
thereof, any fractional share, after aggregating all
shares held by a Shareholder, shall be rounded down
to the nearest whole share of MOZN Common Stock and to
the extent required by Delaware Law, such Shareholder
will be entitled to receive an amount of cash equal
to the fractional shares to which such Shareholder
would be entitled, multiplied by the Trading Price.
(f) Adjustments to Stock Exchange Ratio. The Stock Exchange
Ratio shall be adjusted to reflect fully the effect
of any stock split, reverse split, dividend
(including any dividend or distribution of cash,
assets or securities convertible into MOZN Common
Stock or Q5 Common Stock), distribution,
reorganization or recapitalization with respect to
MOZN Common Stock or Q5 Common Stock occurring after
the date hereof and prior to the Effective Time.
1.7 Dissenting Shares.
(a) Notwithstanding any provision of this Agreement to the
contrary, any shares of Q5 Common Stock held by a
holder who has exercised and perfected appraisal rights
for such shares in accordance with Delaware Law and
who, as of the Effective Time, has not effectively
withdrawn or lost such dissenter's rights ("Dissenting
Shares"), shall not be converted into or represent a
right to receive the consideration for Q5 Common Stock
pursuant to Section 1.6, but the holder thereof shall
only be entitled to such rights as are granted by
Delaware Law.
(b) Notwithstanding the provisions of Section 1.7(a), if
any holder of Dissenting Shares shall effectively
withdraw or lose (through failure to perfect or
otherwise) his or her dissenter's rights, then, as of
the later of the Effective Time and the occurrence of
such event, such holder's shares shall automatically
be converted into and represent only the right to
receive the consideration for Q5 Common Stock as
provided in Section 1.6, without interest thereon, upon
surrender of the certificate representing such shares.
(c) Q5 shall give MOZN (i) prompt written notice of any
written demand for purchase received by Q5 pursuant to
the applicable provisions of Delaware Law and (ii) the
opportunity to participate in all negotiations and
proceedings with respect to such demands. Q5 shall not,
except with the prior written consent of MOZN,
voluntarily make any payment with respect to any such
demands or offer to settle or settle any such demands.
1.8 Surrender of Certificates.
(a) Exchange Agent. An institution selected by Q5 and
reasonably satisfactory to MOZN shall serve as exchange
agent (the "Exchange Agent") in the Merger.
(b) MOZN to Provide Shares. Prior to the Closing, MOZN
shall deliver Certificates representing the shares of
MOZN Common Stock representing the MOZN Common Stock
Consideration (in the aggregate amount to be issued
in the Merger) to the Exchange Agent for exchange
in accordance with this Article I.
(c) Exchange Procedures. As soon as practicable after
the execution of this Agreement, MOZN shall cause the
Exchange Agent to mail to each holder of record
(as of such date) of a certificate or certificates
(the "Certificates") which immediately prior to the
Effective Time represented outstanding shares of Q5
Common Stock whose shares were converted into the right
to receive shares of MOZN Common Stock pursuant to
Section 1.6: (i) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only
upon delivery of the Certificates to the Exchange
Agent and shall be in such form and have such other
provisions as MOZN may reasonably specify) and
(ii) instructions for use in effecting the surrender
of the Certificates in exchange for certificates
representing shares of MOZN Common Stock. Upon
surrender of Certificates for cancellation to the
Exchange Agent or to such other agent or agents as may
be appointed by MOZN, together with such letter of
transmittal, duly completed and validly executed in
accordance with the instructions thereto, the holders
of such Certificates shall receive in exchange
therefore certificates representing the number of whole
shares of MOZN Common Stock, and the Certificates so
surrendered shall forthwith be canceled. Until so
surrendered, outstanding Certificates will be deemed
from and after the Effective Time, for all corporate
purposes, subject to Section 1.8(d) as to the payment
of dividends, to evidence the ownership of the number
of full shares of MOZN Common Stock into which such
shares of Q5 Common Stock shall have been so converted
and the right to receive any dividends or distributions
payable pursuant to Section 1.8(d).
(d) Distributions With Respect to Unexchanged Shares.
No dividends or other distributions declared or made
after the date of this Agreement with respect to MOZN
Common Stock with a record date after the Effective
Time will be paid to the holders of any unsurrendered
Certificates with respect to the shares of MOZN Common
Stock represented thereby until the holders of record
of such Certificates shall surrender such Certificates.
Subject to applicable law, following surrender of any
such Certificates, the Exchange Agent shall deliver
to the record holders thereof, without interest,
certificates representing whole shares of MOZN Common
Stock issued in exchange therefore and the amount of
any such dividends or other distributions with a record
date after the Effective Time payable with respect to
such whole shares of MOZN Common Stock. No interest
shall accrue or be owed to a Shareholder with respect
to any amounts which the Shareholder has the right to
receive.
(e) Transfers of Ownership. If any certificate for
shares of MOZN Common Stock is to be issued in a name
other than that in which a Certificate surrendered in
exchange therefore is registered, it will be a condition
of the issuance thereof that the Certificate so
surrendered will be properly endorsed and otherwise in
proper form for transfer and that the persons requesting
such exchange will have paid to MOZN or any agent
designated by it any transfer or other taxes required
by reason of the issuance of certificates for shares
of MOZN Common Stock in any name other than that of the
registered holder of the Certificate surrendered, or
established to the satisfaction of MOZN or any agent
designated by it that such tax has been paid or is not
payable.
(f) No Liability. Notwithstanding anything to the
contrary in this Section 1.8, none of the Exchange Agent,
the Surviving Corporation or any party hereto shall be
liable to a holder of shares of Q5 Common Stock for
any amount properly paid to a public official pursuant
to any applicable abandoned property, escheat or similar
law.
1.9 No Further Ownership Rights in Q5 Common Stock. All consideration
paid in respect of the surrender for exchange of shares of Q5 Common Stock in
accordance with the terms hereof shall be deemed to be full satisfaction of all
rights pertaining to such shares of Q5 Common Stock, and there shall be no
further registration of transfers on the records of the Surviving Corporation of
shares of Q5 Common Stock which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented to the
Surviving Corporation for any reason, they shall be canceled and exchanged as
provided in this Article I.
|
End of Preview |
Home Intelligence Services Subscriptions News About Us