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Title: |
Agreement and Plan of Merger |
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Date: |
2001 |
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Preview shows 18KB of 139KB total |
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$50 |
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ID: |
#342113 |
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AGREEMENT AND PLAN OF MERGER
by and among
LECSTAR COMMUNICATIONS CORPORATION
CORZON, INC.
and
LECSTAR ACQUISITION CORPORATION
January 5, 2001
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C} {C}
ARTICLE I.
THE MERGER; CLOSING; EFFECTIVE TIME; DESIGNATION
1.1 The Merger............................................................1
1.2 Closing...............................................................1
1.3 Effective Time........................................................1
1.4 Certificate of Designation............................................2
ARTICLE II.
CERTIFICATE OF INCORPORATION AND BYLAWS OF THE SURVIVING CORPORATION
2.1 The Certificate of Incorporation......................................2
2.2 The Bylaws............................................................2
ARTICLE III.
OFFICERS, DIRECTORS AND MANAGEMENT
3.1 Directors of Surviving Corporation....................................2
3.2 Officers of Surviving Corporation.....................................2
ARTICLE IV.
EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES
4.1 Effect on Capital Stock...............................................2
4.2 Exchange of Certificates for Shares...................................3
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.1 Organization, Good Standing and Qualification.........................4
5.2 Capital Structure.....................................................5
5.3 Corporate Authority and Approval......................................6
5.4 Government Filings; No Violations.....................................6
5.5 Financial Statements..................................................7
5.6 Absence of Certain Changes............................................7
5.7 Litigation and Liabilities............................................7
5.8 Employee Benefits.....................................................8
5.9 Compliance with Laws.................................................10
5.10 Environmental Matters................................................10
5.11 Accounting and Tax Matters...........................................11
{/TABLE}
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{PAGE} 3
TABLE OF CONTENTS
(continued)
{TABLE}
{CAPTION}
PAGE
{S} {C} {C}
5.12 Taxes................................................................11
5.13 Labor Matters........................................................12
5.14 Brokers and Finders..................................................12
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE MERGER SUB
6.1 Organization, Good Standing and Qualification........................12
6.2 Capital Structure....................................................13
6.3 Corporate Authority and Approval.....................................14
6.4 Government Filings; No Violations....................................14
6.5 Reports; Financial Statements........................................14
6.6 Absence of Certain Changes...........................................15
6.7 Accounting and Tax Matters...........................................15
6.8 Brokers and Finders..................................................15
6.9 Litigation and Liabilities...........................................16
6.10 Employee Benefits....................................................16
6.11 Compliance with Laws.................................................18
6.12 Environmental Matters................................................18
6.13 Taxes................................................................19
6.14 Labor Matters........................................................19
ARTICLE VII.
COVENANTS
7.1 Interim Operations...................................................20
7.2 Acquisition Proposals................................................22
7.3 Post-Closing Shareholder Vote........................................23
7.4 Access; Consultation.................................................23
7.5 Publicity............................................................24
7.6 Benefits.............................................................24
7.7 Expenses.............................................................24
7.8 Indemnification of Officers and Directors............................24
7.9 Post-Merger Indemnification..........................................24
{/TABLE}
-ii-
{PAGE} 4
TABLE OF CONTENTS
(continued)
{TABLE}
{CAPTION}
PAGE
{S} {C} {C}
ARTICLE VIII.
CONDITIONS
8.1 Conditions to Each Party's Obligation to Effect the Merger...........25
8.2 Condition to Obligations of Parent and Merger Sub....................25
8.3 Conditions to Obligation of the Company..............................27
ARTICLE IX.
TERMINATION
9.1 Termination by Mutual Consent........................................28
9.2 Termination by Either Parent or the Company..........................28
9.3 Termination by the Company...........................................28
9.4 Termination by Parent................................................29
9.5 Effect of Termination and Abandonment................................29
ARTICLE X.
INDEMNIFICATION AND SURVIVAL
10.1 Indemnification of the Company.......................................29
10.2 Sherman..............................................................29
10.3 Survival.............................................................30
ARTICLE XI.
MISCELLANEOUS AND GENERAL
11.1 Modification or Amendment............................................30
11.2 Waiver...............................................................30
11.3 Counterparts.........................................................30
11.4 Governing Law and Venue; Waiver of Jury Trial........................30
11.5 Notices..............................................................31
11.6 Entire Agreement.....................................................32
11.7 No Third Party Beneficiaries.........................................32
11.8 Obligations of Parent and of the Company.............................32
11.9 Severability.........................................................32
11.10 Interpretation.......................................................33
11.11 Captions.............................................................33
11.12 Assignment...........................................................33
{/TABLE}
-iii-
{PAGE} 5
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
January 5, 2001 (the "Agreement Date"), is by and among LecStar Communications
Corporation, a Delaware corporation (the "Company"), Corzon, Inc., a Texas
corporation ("Parent"), and LecStar Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Sub").
RECITALS
WHEREAS, the respective Boards of Directors of each of Parent, Merger
Sub and the Company have approved this Agreement and the merger of Merger Sub
with and into the Company (the "Merger") upon the terms and subject to the
conditions set forth in this Agreement;
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 (the "Code"), and to cause the Merger to qualify as a
reorganization under the provisions of Section 368(a) of the Code; and
WHEREAS, the Company, Parent and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with this
Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained in this
Agreement, the parties agree as follows:
ARTICLE I.
The Merger; Closing; Effective Time; Designation
1.1 The Merger. Upon the terms and subject to the conditions set forth
in this Agreement, at the Effective Time (as defined in Section 1.3), Merger Sub
shall be merged with and into the Company and the separate corporate existence
of Merger Sub shall thereupon cease. The Company shall be the surviving
corporation in the Merger (sometimes referred to as the "Surviving Corporation")
and shall continue to be governed by the laws of the state of Delaware, and the
separate corporate existence of the Company with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the Merger. The
Merger shall have the effects specified in the Delaware General Corporation Law,
as amended (the "DGCL").
1.2 Closing. The closing of the Merger and the other transactions
contemplated hereby (the "Closing") shall take place upon the fulfillment by
each party of their respective obligations hereunder (the "Closing Date"), at
such place as the parties may agree.
1.3 Effective Time. On the Closing Date, the Company and Parent will
cause the Certificate of Merger (the "Certificate of Merger") to be executed,
acknowledged and filed with the Secretary of Sate of Delaware as provided in
Section 251 of the DGCL. The Merger
{PAGE} 6
shall become effective at the time when the Certificate of Merger has been duly
filed with the Secretary of State of Delaware or such other time as shall be
agreed upon by the parties and set forth in the Certificate of Merger in
accordance with the DGCL (the "Effective Time").
1.4 Certificate of Designation. Prior to the Effective Time, the Board
of Directors of the Parent, in accordance with applicable law, shall have filed
with the Secretary of State of the State of Texas a statement in the form of
Exhibit A attached hereto and incorporate herein, which (i) shall have
designated 100 shares of the preferred stock, par value $1.00 per share, of the
Parent as Series F Convertible Preferred Stock (the "Series F Stock") and (ii)
shall have set forth the terms, designations, powers, preferences and relative
rights, and the qualifications, limitations and restrictions of the Series F
Stock.
ARTICLE II.
Certificate of Incorporation and Bylaws of the Surviving Corporation
2.1 The Certificate of Incorporation. The certificate of incorporation
of the Company as in effect immediately prior to the Effective Time shall be the
certificate of incorporation of the Surviving Corporation (the "Charter"), until
thereafter amended as provided therein or by applicable law.
2.2 The Bylaws. The bylaws of the Company in effect at the Effective
Time shall be the bylaws of the Surviving Corporation (the "Bylaws"), until
thereafter amended as provided therein or by applicable law.
ARTICLE III.
Officers, Directors and Management
3.1 Directors of Surviving Corporation. The directors of the Company at
the Effective Time shall, from and after the Effective Time, be the directors of
the Surviving Corporation until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Charter and the Bylaws.
3.2 Officers of Surviving Corporation. The officers of the Company at
the Effective Time shall, from and after the Effective Time, be the officers of
the Surviving Corporation until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Charter and the Bylaws.
ARTICLE IV.
Effect of the Merger on Capital Stock; Exchange of Certificates
4.1 Effect on Capital Stock. At the Effective Time, the Merger shall
have the following effects on the capital stock of the Company and Merger Sub,
without any action on the part of the holder of any capital stock of the Company
or Merger Sub:
2
{PAGE} 7
(a) Merger Consideration. All of the shares of common stock,
$0.01 par value per share, of the Company (each a "Company Share" and together
the "Company Shares") issued and outstanding immediately prior to the Effective
Time shall be converted into and become exchangeable for, on an aggregate basis,
(i) 400,000,000 shares of common stock, par value $0.01 per share, of the Parent
(the "Parent Common Stock") and (ii) 10 shares of Series F Convertible Preferred
Stock, par value $1.00 per share, of Parent ("Series F Stock") (collectively,
the Parent Common Stock and the Series F Stock is referred to herein as the
"Merger Consideration").
(b) Cancellation of Shares. Each Company Share issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, no longer be
outstanding, shall be canceled and retired without payment of any consideration
therefore and shall cease to exist. At the Effective Time, each certificate
formerly representing any of such Company Shares (a "Certificate") shall
thereafter represent only the right to a pro rata portion of the Merger
Consideration and any distribution or dividend pursuant to Section 4.2(b)
without interest.
(c) Merger Consideration. At the Effective Time, each share of
common stock, par value $.001 per share, of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into one Company
Share, and the Surviving Corporation shall be a wholly-owned subsidiary of
Parent.
4.2 Exchange of Certificates for Shares.
(a) Exchange Procedures. Promptly after the Effective Time,
the Surviving Corporation shall cause to be mailed to each holder of record as
of the Effective Time instructions for exchanging the Certificates for
certificates representing the appropriate number of shares of Parent Common
Stock and Series F Stock, in accordance with Section 4.1(a) (collectively,
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