Agreement of Merger - Norway Acquisition Corp. and iCentral Inc.
AGREEMENT OF MERGER
OF
NORWAY ACQUISITION CORPORATION
AND
ICENTRAL, INCORPORATED
THIS AGREEMENT OF MERGER, is made and entered into as of April 30, 1998
(the "Merger Agreement"), by and between Norway Acquisition Corporation (the
"Transitory Subsidiary"), a Delaware corporation and a newly-formed, wholly-
owned subsidiary of Open Market, Inc., a Delaware corporation ("Open Market"),
and Icentral, Incorporated, a Utah corporation ("Icentral"), pursuant to an
Agreement and Plan of Merger, dated as of April 29, 1998 (the "Plan of Merger"),
by and among Open Market, the Transitory Subsidiary and Icentral. The
Transitory Subsidiary and Icentral are sometimes referred to as the "Constituent
Corporations."
NOW THEREFORE, the parties agree as follows:
ARTICLE I
THE MERGER
1.1 MERGER OF TRANSITORY SUBSIDIARY WITH AND INTO ICENTRAL. Icentral
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shall be acquired by Open Market through a merger (the "Merger") of the
Transitory Subsidiary with and into Icentral. The separate corporate existence
of the Transitory Subsidiary shall cease and Icentral shall be the surviving
corporation (the "Surviving Corporation"). The Merger shall become effective on
such date (the "Effective Time") as this Merger Agreement is filed with the
Secretary of State of the State of Utah and the Secretary of State of the State
of Delaware.
1.2 EFFECT OF THE MERGER; ADDITIONAL ACTIONS.
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1.2.1 EFFECTS. The Merger shall have the effects set forth in
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Section 16-10a-1106 of the Utah Revised Business Corporation Act (the "Utah
Statute") and Section 252 of the Delaware General Corporation Law (the "Delaware
Statute"). The Surviving Corporation shall assume all the liabilities of the
Transitory Subsidiary upon the Effective Time.
1.2.2 ADDITIONAL ACTION. The Surviving Corporation may, at any time
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after the Effective Time, take any action, including executing and delivering
any document, in the name and on behalf of either Constituent Corporation, in
order the consummate the transactions contemplated by this Merger Agreement.
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ARTICLE II
THE CONSTITUENT CORPORATIONS
2.1 ORGANIZATION OF ICENTRAL. Icentral was incorporated under the laws of
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the State of Utah on September 25, 1995. The Company is authorized to issue an
aggregate of 50,000,000 shares of Common Stock, no par value per share (the
"Icentral Common Stock") and 20,000,000 shares of Preferred Stock, no par value
per share (the "Icentral Preferred Stock"), of which 24,452,555 shares of the
Icentral Common Stock and no shares of the Icentral Preferred Stock are
outstanding as of the date of this Merger Agreement. Shareholder approval of
the Merger was required. All of the shareholders of the Icentral Common Stock
(the "Icentral Shareholders") voted in favor of the Merger. As of the Effective
Time, the Articles of Incorporation of Icentral shall be amended and restated as
set forth in Exhibit A attached hereto, which provide for 1,000 authorized
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shares of Common Stock of Icentral, par value $.001 per share.
2.2 ORGANIZATION OF THE TRANSITORY SUBSIDIARY. The Transitory Subsidiary
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was incorporated under the laws of the State of Delaware on April 29, 1998. The
Transitory Subsidiary is authorized to issue an aggregate of 1,000 shares of
Common Stock, $.001 par value per share (the "Sub Stock"), of which 100 shares
are outstanding as of the date of this Merger Agreement. Shareholder approval
of the Merger was required. All of the issued and outstanding shares of the Sub
Stock were voted in favor of the Merger.
ARTICLE III
ARTICLES OF INCORPORATION AND BYLAWS OF
THE SURVIVING CORPORATION
3.1 ARTICLES OF INCORPORATION; BYLAWS; DIRECTORS AND OFFICERS. At the
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Effective Time, the Articles of Incorporation of Icentral shall be amended and
restated in their entirety as set forth in Exhibit A attached hereto. The
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Articles of Incorporation of Icentral at the Effective Time, as amended and
restated in Exhibit A, shall be the Articles of Incorporation of the Surviving
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Corporation unless and until thereafter amended in accordance with the
provisions therein and as provided by Utah law. The Bylaws of the Surviving
Corporation from and after the Effective Time shall be the Bylaws of Icentral
set forth as Exhibit D of the Plan of Merger, continuing until thereafter
amended in accordance with their terms and the Articles of Incorporation of the
Surviving Corporation and as provided by Utah law. The officers and directors
of the Surviving Corporation shall be the officers and directors of the
Transitory Subsidiary immediately prior to the Effective Time.
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ARTICLE IV
EFFECT OF THE MERGER ON THE STOCK OF
THE CONSTITUENT CORPORATIONS; EXCHANGE OF SHARES
4.1 CONVERSION OF SHARES.
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4.1.1 At the Effective Time, by virtue of the Merger and without any
action on the part of Open Market, the Transitory Subsidiary or Icentral or the
holder of any of the following shares (other than Dissenting Shares (as defined
below) and shares held in Icentral's treasury), each share of Icentral Common
Stock, issued and outstanding immediately prior to the Effective Time shall be
converted into and represent the right to receive (subject to the provisions of
the Escrow Agreement) .0196349 shares (the "Common Stock Conversion Number") of
common stock, $.001 par value per share, of Open Market ("Buyer Common Stock")
and $.0294448. The Icentral Common Stock issued and outstanding immediately
prior to the Effective Time shall be referred to herein as the "Icentral
Shares."
4.1.2 Wasatch Venture Fund, Gregory E. Gibson, Jeffrey Windsor, David
Hills, Timothy W. Gibson, Robert O. Despain and Darren Whittaker (the "Majority
Shareholders") and the other persons listed on Schedule I of the Plan of Merger
(the "Minority Shareholders") shall be entitled to receive approximately 86% and
100%, respectively, of the shares of Buyer Common Stock into which such Icentral
Shares were converted pursuant to this Section 4.1 rounded up to the nearest
whole share (the "Initial Shares"); the remaining shares of Buyer Common Stock
into which such Icentral Shares were converted pursuant to this Section 4.1 (the
"Escrow Shares") shall be deposited in escrow pursuant to Section 1.10 of the
Plan of Merger and shall be held and disbursed in accordance with the terms of
the Escrow Agreement. The Initial Shares and the Escrow Shares shall together
be referred to herein as the "Merger Shares." The Merger Shares together with
the cash payments referred to in Section 4.1.1 above shall together be referred
to herein as the "Merger Consideration."
4.1.3 Each share of Icentral Common Stock held in Icentral's treasury
immediately prior to the Effective Time and each Icentral Share owned
beneficially by Open Market or the Transitory Subsidiary at the Effective Time
shall be cancelled and retired without payment of any consideration therefor.
4.1.4 Each share of Sub Stock issued and outstanding immediately prior to
the Effective Time shall be converted into and thereafter evidence one share of
common stock, $.001 par value per share, of the Surviving Corporation.
4.2 DISSENTING SHARES.
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4.2.1 For purposes of this Agreement, "Dissenting Shares" means Icentral
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Shares held as of the Effective Time by an Icentral Shareholder who has not
voted such Icentral Shares in favor of the adoption of this Agreement and the
Merger and with respect to which appraisal shall have been duly demanded and
perfected in accordance with the Utah Statute and not effectively withdrawn or
forfeited prior to the Effective Time. Dissenting Shares shall not be converted
into or represent the right to receive Merger Consideration, unless such
Icentral Shareholder shall have forfeited his right to appraisal under the Utah
Statute or withdrawn, with the consent of the Company, his demand for appraisal.
If such Icentral Shareholder has so forfeited or withdrawn his right to
appraisal of Dissenting Shares, then (i) as of the occurrence of such event,
such holder's Dissenting Shares shall cease to be Dissenting Shares and shall be
converted into and represent the right to receive the Merger Consideration
issuable in respect of such Icentral Shares pursuant to Section 4.1.1, and (ii)
promptly following the occurrence of such event, the Buyer shall deliver to the
exchange agent (i) in the case of a Majority Shareholder a certificate
representing approximately 86% of the Merger Shares and (ii) in the case of a
Minority Shareholder 100% of the Merger Shares to which such holder is entitled
pursuant to Section 4.1 (which shares shall be considered Initial Shares for all
purposes of this Agreement) and shall deliver to the Escrow Agent a certificate
representing the remaining Merger Shares to which such holder is entitled, if
any, pursuant to Section 4.1 (which shares shall be considered Escrow Shares for
all purposes of this Agreement).
4.2.2 Icentral shall give Open Market (i) prompt notice of any written
demands for appraisal of any Icentral Shares, withdrawals of such demands, and
any other instruments that relate to such demands received by Icentral and (ii)
the opportunity to direct all negotiations and proceedings with respect to
demands for appraisal under the Utah Statute. Icentral shall not, except with
the prior written consent of Open Market, or as required by applicable law
following written notice to Open Market, make any payment with respect to any
demands for appraisal of the Icentral Shares or offer to settle or settle any
such demands.
4.3 EXCHANGE OF SHARES.
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4.3.1 As soon as practicable after the Effective Time, Open Market shall
send a notice and a transmittal form to each holder of a certificate
representing Icentral Shares (a "Certificate") advising such holder of the
effectiveness of the Merger and the procedure for surrendering to Icentral such
Certificate in exchange for the Initial Shares issuable and cash payments
payable pursuant to Section 4.1.1. Such transmittal form shall include a
representation by the surrendering shareholder that he or she is acquiring the
Merger Shares for investment and not with a view to the distribution thereof,
except in accordance with Section 8 of the Plan of Merger. Each holder of a
Certificate, upon proper surrender thereof to Icentral in accordance with the
instructions in such notice, shall be entitled to receive in exchange therefor
the Initial Shares issuable and cash payments payable pursuant to Section 4.1.1.
Until
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properly surrendered, each such Certificate shall be deemed for all purposes to
evidence only the right to receive the Initial Shares issuable and cash payments
payable pursuant to Section 4.1.1. Holders of Certificates shall not be entitled
to receive certificates for the Initial Shares and cash payments to which they
would otherwise be entitled until such Certificates are properly surrendered.
4.3.2 In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed, Open Market shall issue in
exchange for such lost, stolen or destroyed Certificate the Initial Shares
issuable in exchange therefor pursuant to Section 4.1.1. The Board of Directors
of Open Market may, in its reasonable discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
Certificate to give Open Market a bond in such sum as it may direct as indemnity
against any claim that may be made against Open Market with respect to the
Certificate alleged to have been lost, stolen or destroyed.
4.3.3 Certificates representing the Merger Shares shall contain a legend
substantially in the following form together with any other legends required by
applicable state securities laws:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, and may not be sold, transferred or
otherwise disposed of in the absence of an effective registration statement
under such Act or an opinion of counsel satisfactory to the corporation to
the effect that such registration is not required."
4.4 DIVIDENDS. No dividends or other distributions that are payable to
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the holders of record of the Buyer Common Stock as of a date on or after the
Closing Date shall be paid to former Icentral Shareholders entitled by reason of
the Merger to receive Initial Shares until such holders surrender their
Certificates in accordance with Section 4.3. Upon such surrender, Open Market
shall pay or deliver to the persons in whose name the certificates representing
such Initial Shares are issued any dividends or other distributions that are
payable to the holders of record of the Buyer Common Stock as of a date on or
after the Closing Date and which were paid or delivered between the Effective
Time and the time of such surrender; provided that no such person shall be
entitled to receive any interest on such dividends or other distributions.
4.5 FRACTIONAL SHARES. No certificates or scrip representing fractional
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Initial Shares shall be issued to former Icentral Shareholders upon the
surrender or exchange of Certificates, and such former Icentral Shareholders
shall not be entitled to any voting rights, rights to receive any dividends or
distributions or other rights as a shareholder of Open Market with respect to
any fractional Initial Shares that would
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otherwise be issued to such former Icentral Shareholders. In lieu thereof,
fractions resulting will be rounded up to the nearest whole number of shares.
ARTICLE V
TERMINATION
5.1 TERMINATION BY MUTUAL AGREEMENT. Notwithstanding the approval of this
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Merger Agreement by the shareholders of Icentral and the Transitory Subsidiary,
this Merger Agreement may be terminated at any time prior to the Effective Time
by mutual agreement of the Boards of Directors of Icentral and the Transitory
Subsidiary.
5.2 TERMINATION OF PLAN OF MERGER. Notwithstanding the approval of this
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Merger Agreement by the shareholders of Icentral and the Transitory Subsidiary,
this Merger Agreement shall terminate in the event that the Plan of Merger shall
be terminated as therein provided.
5.3 EFFECTS OF TERMINATION. In the event of the termination of this
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Merger Agreement, this Merger Agreement shall forthwith become void and there
shall be no liability on the part of Open Market, the Transitory Subsidiary or
Icentral or their respective officers or directors, except to the extent
otherwise provided in the Plan of Merger.
ARTICLE VI
GENERAL PROVISIONS
6.1 AMENDMENT. This Merger Agreement may be amended prior to the
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Effective Time by the parties hereto, by any action taken by their respective
Boards of Directors, at any time before or after approval of the Merger by the
shareholders of Icentral and the Transitory Subsidiary but, after any such
approval, no amendment shall be made which by law requires the further approval
of the shareholders without obtaining such further approval. This Merger
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties.
6.2 COUNTERPARTS. This Merger Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement.
6.3 GOVERNING LAW. This Merger Agreement shall be governed in all
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respects, including validity, interpretation and effect in Utah by the laws of
the State of Utah and in Delaware by the laws of the State of Delaware.
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6.4 SERVICE OF PROCESS UPON MERGER OF CONSTITUENT CORPORATIONS. The
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Surviving Corporation hereby agrees that it may be served with process in the
State of Delaware in any proceeding for the enforcement of any obligation of the
Transitory Subsidiary arising from the merger, including the rights of any
dissenting stockholders thereof, and hereby irrevocably appoints the Secretary
of State of Delaware as its agent to accept service of process in any such suite
or other proceedings and agrees that service of any such process may be made by
personally delivering to and leaving with such Secretary of State of the State
of Delaware duplicate copies of such process, and hereby authorizes the
Secretary of State of the State of Delaware to send forthwith by registered mail
one of such duplicate copies of such process addressed to it at:
Icentral, Incorporated
225 N. University Avenue
Provo, Utah 84601
Attn: Gregory Gibson
unless said Surviving Corporation shall hereafter designate in writing to such
Secretary of State of the State of Delaware a different address for such
process, in which case the duplicate copy of such process shall be mailed to the
last address so designated.
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IN WITNESS WHEREOF, the parties have duly executed this Merger Agreement as
of the day and year first written above.
NORWAY ACQUISITION CORPORATION
By: /s/ Gary B. Eichhorn
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Gary B. Eichhorn, President
By: /s/ Eric J. Pyenson
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Eric J. Pyenson, Secretary
ICENTRAL, INCORPORATED
By: /s/ Gregory Gibson
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Gregory Gibson, President
By: /s/ David Hills
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David Hills, Secretary