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Title: |
Agreement and Plan of Reorganization |
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Date: |
2000 |
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Preview shows 12KB of 50KB total |
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$47 |
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ID: |
#953712 |
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AGREEMENT AND PLAN OF REORGANIZATION
Between and Among
OnCOURSE TECHNOLOGIES, INC.
(a Nevada business corporation)
as the Parent
MICRO ACQUISITION CORPORATION
(a Wisconsin business corporation)
as the Sub
MICRO ESTIMATING SYSTEMS, INC.
(a Pennsylvania business corporation)
as the Target
FRANK G. WRIGHT
(an individual resident of Massachusetts)
as the Principal Parent Shareholder
BERNARD A. WOODS III
(an individual resident of Wisconsin)
as the Majority Target Shareholder
and
CHARLES W. BEYER
(an individual resident of Wisconsin)
as the Minority Target Shareholder
Dated: July 23, 1998
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AGREEMENT AND PLAN OF REORGANIZATION
------------------------------------
AGREEMENT AND PLAN OF REORGANIZATION ("Reorganization Agreement"), dated as
of July 23, 1998, between and among OnCOURSE TECHNOLOGIES, INC., a Nevada
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corporation ("Parent"), MICRO ACQUISITION CORPORATION, a Wisconsin corporation
and a wholly-owned subsidiary of Parent ("Sub"), MICRO ESTIMATING SYSTEMS, INC.,
a Pennsylvania corporation ("Target") (Sub and Target being hereinafter
collectively referred to as the "Constituent Corporations"), FRANK G. WRIGHT, an
individual resident of Massachusetts and the owner of the largest number of
shares of Parent (the "Principal Parent Shareholder"), BERNARD A. WOODS III, an
individual resident of Wisconsin and the majority shareholder of Target (the
"Majority Target Shareholder") and CHARLES W. BEYER, individual resident of
Wisconsin and the owner of the remaining shares of Target (the "Minority Target
Shareholder").
RECITALS
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A. The Boards of Directors of Parent, Sub and Target have approved the
acquisition of Target by Parent.
B. The Boards of Directors of Parent, Sub and Target have approved the
merger of Target into Sub (the "Merger") upon the terms and subject to the
conditions set forth herein and in the Plan of Merger, Exhibit "A" attached
hereto and made a part hereof (the "Plan of Merger").
C. For federal income tax purposes, it is intended that the Merger shall
qualify as a reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code").
D. Each of the parties to this Reorganization Agreement desires to make
certain representations, warranties and agreements in connection with the Merger
and also to prescribe various conditions thereto.
AGREEMENT
---------
Therefore, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
THE MERGER
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SECTION 1.1 THE MERGER
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(a) At the Effective Time (as defined in Section 1.2) and subject to the
terms and conditions of this Reorganization Agreement and the Plan of Merger,
Target shall be merged into Sub and the separate existence of Target shall
thereupon cease, in accordance with the applicable provisions of the Wisconsin
Business Corporation Law (the "WIBCL") and the Pennsylvania Business Corporation
Law (the "PABCL").
(b) Sub will be the surviving corporation in the Merger (sometimes
referred to herein as the "Surviving Corporation") and will continue to be
governed by the laws of the State of Wisconsin, and the separate corporate
existence of Sub and all of its rights, privileges, immunities and franchises,
public or private, and all its duties and liabilities as a corporation organized
under the WIBCL, will continue unaffected by the Merger.
(c) The Merger will have the effects specified by the WIBCL and the PABCL.
SECTION 1.2 EFFECTIVE TIME. As soon as practicable following fulfillment
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or waiver of the conditions specified in Sections 5.1(d) and 5.2(d) hereof and
provided that this Reorganization Agreement has not been terminated or abandoned
pursuant to Section 7.1 hereof or the Plan of Merger has not been terminated or
abandoned pursuant to Section 4.1 thereof, the Constituent Corporations will (a)
execute and cause Articles of Merger substantially in the form of Exhibit "B"
attached hereto and made a part hereof (the "Articles of Merger"), to be filed
with the Department of Financial Institutions of Wisconsin as provided in
Section 180.1105 of the WIBCL; (b) prepare, execute and file a final
Pennsylvania S Corporation Information Return (Form PA-20S) with the
Pennsylvania Department of Revenue for the Target; (c) prepare, execute and file
an Application for Tax Clearance Certificate (Form REV-181 CM) with the
Pennsylvania Department of Revenue for the Target and obtain clearance
certificates for the Target from the Pennsylvania Department of Revenue and the
Office of Employment Security of the Department of Labor and Industry, as
required by Section 139 of the PABCL (the "Clearance Certificates"); (d) prepare
a Docketing Statement (Form DSCB:15-134B) as required by Section 134 of the
PABCL (the "Docketing Statement"); and (e) execute and cause Articles of Merger,
the Clearance Certificates, and the Docketing Statement to be filed with the
office of the Secretary of State of the Commonwealth of Pennsylvania, as
required by Section 1927 of the PABCL. Subject to and in accordance with the
laws of the State of Wisconsin and Commonwealth of Pennsylvania, the Merger will
become effective at the date(s) and time(s) the Articles of Merger is filed with
the office of the Department of Financial Institutions of Wisconsin and the
Secretary of State of the Commonwealth of Pennsylvania, respectively, or such
later date(s) or time(s) as may be specified in the Articles of Merger (the
"Effective Time").
ARTICLE II
THE SURVIVING CORPORATION
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SECTION 2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation of
----------- -------------------------
Sub as in effect immediately prior to the Effective Time shall be the Articles
of Incorporation of the Surviving Corporation after the Effective Time.
SECTION 2.2 BY-LAWS. The By-Laws of Sub as in effect immediately prior
----------- -------
to the Effective Time shall be the By-Laws of the Surviving Corporation after
the Effective Time.
SECTION 2.3 BOARD OF DIRECTORS. From and after the Effective Time, the
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Board of Directors of Sub shall be the Board of Directors of the Surviving
Corporation.
ARTICLE III
CONVERSION OF SHARES
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SECTION 3.1 CONVERSION OF TARGET SHARES IN THE MERGER. Majority Target
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Shareholder and Minority Target Shareholder are, as of the date of this
Reorganization Agreement, all of the shareholders of Target. For the purposes of
this Reorganization Agreement, the term "Target Shareholders" shall mean all of
the shareholders of Target at the time of application of the term. Pursuant to
the Plan of Merger and in consideration of the acquisition of Target, Parent
shall issue and deliver to the Target Shareholders at the Effective Time an
aggregate of nineteen million, seven hundred and thirty-three thousand
(19,733,000) shares of validly issued, fully paid and nonassessable common
stock, par value one tenth of a cent ($0.001) per share, of Parent ("Parent
Common Stock"), to be allocated in the same proportions as the respective
ownership of the Target Shareholders of Target Common Stock. In the event such
allocation results in a Conversion Ratio (as hereinafter defined) which is not
whole numbers, the Conversion Ratio shall be rounded up or down to the nearest
one hundredths (0.00) and the Merger Consideration (as hereinafter defined)
shall be adjusted accordingly. By way of example, if as of the Effective Time
the Target Shareholders are the only shareholders of Target and they own
collectively fourteen and twenty-eight one hundredths (14.28) shares of common
stock, par value one ($1.00) dollar per share, of Target ("Target Common Stock")
and there are no Target Dissenting Shares (as defined in Section 3.4 hereof), by
virtue of the Merger and without any action on the part of any holder of any
capital stock of Target, all issued and outstanding shares of Target Common
Stock shall be converted into, and become exchangeable for, one million three
hundred eighty-one thousand eight hundred sixty-two and seventy-five one-
hundredths (1,381,862.75) shares of Parent Common Stock, for a total of nineteen
million, seven hundred and thirty-three thousand and seven-tenths (19,733,000.7)
shares The consideration referred to in this Section 3.1, or such other
consideration as is determined by application of the foregoing provisions of
this Section, is hereinafter referred to as the "Merger Consideration" and the
ratio of one million three hundred eighty-one thousand eight hundred sixty-two
and seventy-five one-hundredths (1,381,862.75) to one (1), or such other ratio
as is determined by application of the foregoing provisions of this Section, is
hereinafter referred to as the "Conversion Ratio."
SECTION 3.2 STATUS OF SUB SHARES. At the Effective Time, by virtue of
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the Merger and without any action on the part of any holder of any capital stock
of Sub, each issued and outstanding share of common stock of Sub shall continue
unchanged and remain outstanding as a share of common stock of the Surviving
Corporation.
SECTION 3.3 EXCHANGE OF TARGET COMMON STOCK CERTIFICATES.
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