Exhibit 2.2
ANNEX A
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER ("PLAN OF MERGER") dated June 30, 2000, pursuant
to Sections 1100 and 1101 of the California General Corporation Law, as amended
(the "CGCL"), is among iExalt, Inc., a Nevada corporation ("IEXALT"), KCG
Combination Corp., a California corporation ("MERGER SUB"), and Keener
Communications Group, a California corporation ("KCG" or the "SURVIVING
CORPORATION"). Merger Sub and KCG are hereinafter together referred to as the
"MERGING CORPORATIONS."
W I T N E S S E T H:
WHEREAS, iExalt is a corporation duly organized and validly existing under
the laws of the State of Nevada, and has authorized capital stock consisting of
(i) 100 million shares of common stock, $.001 par value per share ("IEXALT
COMMON STOCK"), of which 27,930,409 shares are issued and outstanding, and (ii)
20 million shares of Preferred Stock, $.001 par value per share, none of which
are issued or outstanding;
WHEREAS, Merger Sub is a corporation duly organized and validly existing
under the laws of the State of California, and has authorized capital stock
consisting of 1,000 shares of common stock, $.01 par value per share ("MERGER
SUB COMMON STOCK"), of which 1,000 shares are issued and outstanding and owned
and held by iExalt;
WHEREAS, KCG is a corporation duly organized and validly existing under
the laws of the State of California, and has authorized capital stock consisting
of 1,000,000 shares of common stock, no par value ("KCG COMMON STOCK"), of which
200,000 shares are issued and outstanding;
WHEREAS, the respective Boards of Directors of the Merging Corporations
deem it advisable and in the best interests of the respective Merging
Corporations and their respective shareholders that Merger Sub be merged with
and into KCG (the "MERGER"), with KCG to be the surviving corporation of the
Merger and to continue in existence after the Merger as authorized by the laws
of the State of California, under and pursuant to the terms and conditions set
forth in this Plan of Merger, and the Board of Directors of each of the Merging
Corporations has duly approved this Plan of Merger and recommended its approval
to the respective shareholders of the Merging Corporations; and
WHEREAS, simultaneously with the execution of this Plan of Merger, iExalt,
Merger Sub, KCG and the shareholders of KCG have entered into an Agreement and
Plan of Reorganization of even date herewith (the "REORGANIZATION AGREEMENT"),
which provides for the execution of this Plan of Merger by iExalt, Merger Sub
and KCG;
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NOW, THEREFORE, for the purpose of setting forth the terms and conditions
of the Merger, the mode of carrying the Merger into effect, and such other
details and provisions concerning the Merger as are deemed necessary or
desirable, the parties to this Plan of Merger hereby agree, subject to the
approval of this Plan of Merger by the requisite consent of the shareholders of
each of the Merging Corporations, and subject to the conditions hereinafter set
forth, as follows:
1. MERGER. At the Effective Time, Merger Sub shall be merged with and into
KCG, with KCG to be the surviving corporation which after the Effective Time
shall continue its corporate existence as a California corporation to be
governed by the laws of the State of California.
2. TERMS AND CONDITIONS OF MERGER. At the Effective Time:
(i) the Merging Corporations shall be a single corporation, which
shall be KCG, the corporation designated in this Plan of Merger as the
surviving corporation;
(ii) the separate corporate existence of Merger Sub shall cease; and
(iii) the Merger shall have the effects stated in Sections 1103 and
1107 of the CGCL.
3. EFFECT OF THE MERGER ON CAPITAL STOCK. As of the Effective Time, as a
result of the Merger and without any action on the part of any holder thereof:
(i) each holder of KCG Common Stock which is issued and outstanding
immediately prior to the Effective Time shall automatically be entitled to
receive that number of shares of iExalt Common Stock set forth opposite
their respective names on Schedule 3(i) attached hereto, for a total of
450,000 fully paid and nonassessable shares of issued and outstanding
iExalt Common Stock, and each of the shares of KCG Common Stock issued and
outstanding immediately prior to the Effective Time shall automatically
cease to be outstanding and to exist, and shall be canceled and retired;
(ii) each share of KCG Common Stock held in the treasury of KCG
shall be canceled and retired; and
(iii) each share of Merger Sub Common Stock issued and outstanding
immediately prior to the Effective Time will be converted into one share
of Common Stock, par value $.01 per share, of the Surviving Corporation,
and the shares of Common Stock of the Surviving Corporation resulting from
such conversion will constitute all of the issued and outstanding shares
of capital stock of the Surviving Corporation.
Upon and after the Effective Time, no transfer of shares of KCG Common
Stock issued and outstanding immediately before the Effective Time shall be made
on the stock transfer books of the Surviving Corporation.
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Each holder of a certificate representing shares of KCG Common Stock
immediately before the Effective Time will, as of the Effective Time and
thereafter, cease to have any rights respecting those shares other than the
right to receive, without interest, the shares of iExalt Common Stock into which
his shares of KCG Common Stock shall have been converted as a result of the
Merger.
4. DELIVERY, EXCHANGE AND PAYMENT.
(A) SURRENDER OF CERTIFICATES. At or after the Effective Time: (i) each
holder of an outstanding certificate or certificates previously representing
shares of KCG Common Stock (" KCG SHAREHOLDER"), will, on surrender of his
certificate to iExalt, receive a certificate representing the number of shares
of iExalt Common Stock into which such shares of KCG Common Stock shall have
been converted as a result of the Merger, and (ii) until any certificate
representing KCG Common Stock is surrendered pursuant to this Section 4, that
certificate will, for all purposes, be deemed to evidence ownership of the
number of whole shares of iExalt Common Stock issuable in respect of that
certificate under Sections 3 and 5. All shares of iExalt Common Stock issuable
in the Merger will be deemed for all purposes to have been issued by iExalt at
the Effective Time.
(B) CERTAIN TRANSFERS. In the event of a transfer of ownership of shares
of KCG Common Stock that is not registered in the transfer records of KCG, the
certificate representing shares of iExalt Common Stock issuable in respect of
such shares of KCG Common Stock may be issued to a transferee if the certificate
representing such shares of KCG Common Stock is presented to iExalt's transfer
agent, accompanied by all documents required to evidence and effect such
transfer and by evidence satisfactory to iExalt and its transfer agent that any
applicable stock transfer taxes have been paid.
(C) LOST CERTIFICATES. If any certificate representing shares of KCG
Common Stock shall have been lost, stolen or destroyed, upon receipt of (i) an
affidavit of that fact from the KCG Shareholder claiming the certificate to be
lost, stolen or destroyed, (ii) such bond, security or indemnity as iExalt or
its transfer agent may reasonably require, and (iii) any other documentation
necessary to evidence and effect the bona fide exchange thereof, iExalt shall
cause its transfer agent to issue to such KCG Shareholder a certificate
representing the shares of iExalt Common Stock into which the shares of KCG
Common Stock represented by the lost, stolen or destroyed certificate would have
been exchanged.
(D) DIVIDENDS AND DISTRIBUTIONS. No dividends (or interest) or other
distributions declared or earned after the Effective Time with respect to iExalt
Common Stock and payable to the holders of record thereof after the Effective
Time will be paid to the holder of any unsurrendered certificate representing
shares of KCG Common Stock for which shares of iExalt Common Stock have been
issued in the Merger until the unsurrendered certificates are surrendered as
provided herein, but (i) on such surrender, iExalt will cause to be paid, to the
person in whose name the certificate representing such shares of iExalt Common
Stock shall then be issued, the amount of dividends or other distributions
previously paid with respect to such whole shares of iExalt Common Stock with a
record date, or which have accrued, subsequent to the Effective Time, but prior
to
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surrender, and (ii) at the appropriate payment date or as soon as practicable
thereafter, iExalt will cause to be paid to that person the amount of dividends
or other distributions with a record date, or which have been accrued,
subsequent to the Effective Time, but which are not payable until a date
subsequent to surrender, which are payable with respect to such number of whole
shares of iExalt Common Stock, subject in all cases to any applicable escheat
laws. No interest will be payable with respect to the payment of such dividends
or other distributions on surrender of outstanding certificates.
5. NO FRACTIONAL SHARES. Notwithstanding any other provision of this Plan
of Merger, no certificates for fractional share interests of iExalt Common Stock
will be issued.
6. ARTICLES OF INCORPORATION, BYLAWS, DIRECTORS, COMMITTEES AND OFFICERS.
(A) ARTICLES OF INCORPORATIOAt the Effective Time, Article IV of the
Articles of Incorporation of KCG shall be amended to read in its entirety as
follows:
"IV
STOCK
The Corporation has the authority to issue an aggregate of 1,000
shares of common stock, par value $.01 per share."
From and after the Effective Time, the Articles of Incorporation of KCG,
as existing immediately before the Effective Time and as so amended by this Plan
of Merger, shall be the Articles of Incorporation of the Surviving Corporation,
subject to the right of the Surviving Corporation to amend its Articles of
Incorporation after the Effective Time in accordance with such Articles of
Incorporation and the CGCL.
(B) BYLAWS. From and after the Effective Time of the Merger, the bylaws of
KCG, as in effect immediately prior to the Effective Time of the Merger, shall
be the bylaws of the Surviving Corporation, until changed or amended as provided
therein.
(C) DIRECTORS. From and after the Effective Time, the directors of the
Surviving Corporation shall be Jack I. Tompkins, Kirwin L. Drouet, James W.
Carroll and Lamar H. Keener. If before the Effective Time, any one or more of
such persons dies or refuses or becomes unable to serve as a director, then the
remaining named persons shall be the directors of the Surviving Corporation from
and after the Effective Time. The directors of the Surviving Corporation shall
hold office subject to the provisions of the CGCL and the Articles of
Incorporation and bylaws of the Surviving Corporation.
(D) COMMITTEES. From and after the Effective Time, all committees of the
Board of Directors of the Surviving Corporation shall be as from time to time
established and appointed by the
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Board of Directors of the Surviving Corporation after the Effective Time,
subject to the provisions of the CGCL and the bylaws of the Surviving
Corporation.
(E) OFFICERS. From and after the Effective Time, the officers of the
Surviving Corporation shall be as set forth below:
Jack I. Tompkins Chairman
Lamar H. Keener Chief Executive Officer and President
Kirwin L. Drouet Chief Operating Officer, Executive Vice
President and Assistant Secretary
James W. Carroll Chief Financial Officer, Vice President and
Secretary
All other officers of the Surviving Corporation shall be as elected by its
Board of Directors at its first meeting following the Effective Time. From and
after the Effective Time, the officers of the Surviving Corporation shall hold
office subject to the provisions of the CGCL and the bylaws of the Surviving
Corporation.
7. APPROVAL AND EFFECTIVE TIME OF MERGER. This Plan of Merger shall be
submitted to the shareholders of each of the Merging Corporations as provided by
the CGCL. After the approval of this Plan of Merger by the shareholders of each
Merging Corporation in accordance with the requirements of the CGCL, all
required documents shall be executed, filed and recorded and all required acts
shall be done in order to accomplish the Merger under the provisions of the CGCL
and this Plan of Merger. The Merger shall become effective upon the filing a
copy of this Plan of Merger together with an officer's certificate of each of
iExalt and the Merging Corporations with the Secretary of State of the State of
California in accordance with Section 1103 of the CGCL (the "EFFECTIVE TIME").
8. OTHER PROVISIONS.
(A) FURTHER ASSURANCES. If at any time KCG shall consider or be advised
that any further assignment or assurance in law or other action is necessary or
desirable to vest, perfect or confirm, or record or otherwise, in KCG the title
to any property or rights of Merger Sub acquired or to be acquired by or as a
result of the Merger, the proper officers and directors of the Merging
Corporations, respectively, shall be, and they hereby are, severally and fully
authorized to execute and deliver such deeds, assignments and assurances in law
and take such other action as may be necessary or proper in the name of KCG or
Merger Sub to vest, perfect or confirm title to such property or rights in KCG
and otherwise carry out the purposes of this Plan of Merger.
(B) TERMINATION. This Plan of Merger may be terminated at any time before
the Effective Time of the Merger, whether before or after action thereon by the
shareholders of iExalt and the Merging Corporations (if such shareholder
approval is required under applicable law), by mutual consent of iExalt and the
Merging Corporations, expressed by action of their respective Boards of
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Directors. This Plan of Merger shall be automatically abandoned upon the valid
termination of the Reorganization Agreement, in accordance with the terms
thereof, prior to the filing of a copy of this Plan of Merger, together with the
officers' certificates, with the Secretary of State of the State of California
as referred to in Section 7 of this Plan of Merger.
(C) COUNTERPARTS. For the convenience of the parties and to facilitate the
filing and recording of this Plan of Merger, any number of counterparts hereof
may be executed, and each such counterpart shall be deemed to be an original
instrument.
(D) AMENDMENTS. iExalt and the Merging Corporations, by mutual consent of
their respective Boards of Directors, and to the extent permitted by law, may
amend, modify, supplement and interpret this Plan of Merger in such manner as
may be mutually agreed upon by them in writing at any time before or after
adoption thereof by their respective shareholders (if such shareholder approval
is required under applicable law), and, in the case of an interpretation, the
actions of such Boards shall be binding; PROVIDED, HOWEVER, any amendments to
the principal terms of this Plan of Merger shall require the approval of the
respective shareholders of the Merging Corporations.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Plan of Merger to
be executed as of the date first above written.
IEXALT, INC.
ATTEST:
/s/ KIRWIN L. DROUET By: /s/ JACK I. TOMPKINS
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Kirwin L. Drouet, Jack I. Tompkins,
ASSISTANT SECRETARY CHAIRMAN AND CHIEF EXECUTIVE OFFICER
KCG COMBINATION CORP.
ATTEST:
/s/ KIRWIN L. DROUET By: /s/ JACK I. TOMPKINS
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Kirwin L. Drouet, Jack I. Tompkins,
ASSISTANT SECRETARY PRESIDENT
KEENER COMMUNICATIONS GROUP, INC.
By: /s/ LAMAR H. KEENER
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Lamar H. Keener,
PRESIDENT AND SECRETARY
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