EXHIBIT 10.8a
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement") is entered into as of
___________, 1999, by an among NetIgnite, Inc., a Colorado corporation (the
"Merged Corporation"), Perry Evans, the sole shareholder of the Merged
Corporation (the "Sole Shareholder"), and Online System Services, Inc., a
Colorado corporation (the "Surviving Corporation"). (The Merged and Surviving
Corporations may be collectively referred to as "Constituent Corporations").
RECITALS
The Board of Directors of the Surviving Corporation and the Board of
Directors and the Sole Shareholder of the Merged Corporation, deeming it
advisable for the mutual benefit of the Constituent Corporations and their
respective shareholders that the Surviving Corporation acquire the Merged
Corporation under the terms and conditions hereinafter set forth (the "Merger"),
have approved this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
Effective Date of the Merger
The Effective Date of the Merger and of this agreement shall be the close
of business on June 2, 1999 (the "Effective Date"). Upon the Effective Date of
the Merger, the separate existences of the Constituent Corporations shall cease
and the Constituent Corporations shall be merged into the Surviving Corporation,
Online System Services, Inc., a Colorado corporation.
ARTICLE II
Articles of Incorporation
The Articles of Incorporation of the Surviving Corporation shall be the
Articles of Incorporation of the Surviving Corporation as the same shall be in
effect on the Effective Date of the Merger.
ARTICLE III
Bylaws; Registered Office
The Bylaws of the Surviving Corporation as of the Effective Date of the
Merger shall be the Bylaws of the Surviving Corporation after the Merger. The
registered office of the Surviving Corporation after the Merger shall be at 1800
Glenarm Place, Suite 700, Denver, Colorado 80202.
2
ARTICLE IV
Directors and Officers
The directors of the Surviving Corporation in office as of the date
hereof shall remain the directors of the Surviving Corporation at and after the
Effective Date of the Merger until their respective successors shall have been
duly elected and qualified. Subject to the authority of the Board of Directors
as provided by law and the Bylaws of the Surviving Corporation, the officers of
the Surviving Corporation at the Effective Date of Merger shall remain the
officers of the Surviving Corporation. The directors of the Merged Corporation
and the officers of the Merged Corporation holding office on the Effective Date
shall be deemed to have resigned effective as of the Effective Date.
ARTICLE V
Conversion of Shares in the Merger
The manner of carrying the Merger into effect, and the manner and basis
of converting the shares of the Constituent Corporations into shares of the
Surviving Corporation are as follows:
5.01. Surviving Corporation's Common Stock. No shares of the Surviving
Corporation's stock issued at the Effective Date shall be converted as a
result of the Merger, but all such shares shall remain issued shares of
the Surviving Corporation.
5.02. Merged Corporation's Common Stock. At the Effective Date each issued and
outstanding share of the Merged Corporation's stock shall be
automatically converted into 71,429 fully paid and nonassessable shares
of Common Stock of the Surviving Corporation (the "Merger Shares").
ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties of the Merged Corporation.
(a) Organization, Standing and Corporate Power. The Merged Corporation is
duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it is incorporated and has the requisite
corporate power and authority to carry on its business as now being
conducted. The Merged Corporation is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which the
nature of its business or the ownership or leasing of its properties
makes such qualification or licensing necessary, other than in such
jurisdictions where the failure to be so qualified or licensed
(individually or in the aggregate) would not have a material adverse
effect with respect to the Surviving Corporation.
(b) Authority; Noncontravention. The Merged Corporation has all requisite
corporate power and authority to enter into this Agreement and to
consummate the
3
transactions contemplated by this Agreement. The execution and
delivery of this Agreement by the Merged Corporation and the
consummation by the Merged Corporation of the transactions
contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of the Merged Corporation and
no other corporate action on the part of the Merged Corporation is
necessary to authorize the execution and delivery of this Agreement
or the consummation by the Merged Corporation of the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by and constitutes a valid and binding obligation of the
Merged Corporation, enforceable against the Merged Corporation in
accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions
hereof will not (a) conflict with or result in any breach of any
provision of the articles of incorporation or bylaws of the Merged
Corporation, or (b) conflict with, or result in any breach or
violation of, or constitute a default under (with or without notice
or lapse of time, or both), or give rise to a right of termination,
cancellation or acceleration under (i) any loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to
the Merged Corporation or its properties or assets or (ii) any
judgment, order, decree, statute, law, ordinance, rule, regulation or
arbitration award applicable to the Merged Corporation or its
properties or assets, or (c) result in the creation of any lien upon
any of the properties or assets of the Merged Corporation. No
consent, approval, order or authorization of, or registration,
declaration or filing with, or notice to, any governmental entity is
required by or with respect to the Merged Corporation or in
connection with the execution and delivery of this Agreement by the
Merged Corporation or the consummation by the Merged Corporation, as
the case may be, of any of the transactions contemplated by this
Agreement, except for (i) the filing with the SEC of such reports
under the Securities Act of 1933, as amended (the "Securities Act")
and the Securities Exchange Act of 1934 (the "Exchange Act") as may
be required in connection with this Agreement and the transactions
contemplated hereby, (ii) the filing of the Articles of Merger with
the Secretary of State of the State of Colorado and appropriate
documents with the relevant authorities of other states in which the
Company is qualified to do business, and (iii) such other consents,
approvals, orders, authorizations, registrations, declarations,
filings or notices as may be required under the "takeover" or "blue
sky" laws of various states.
(c) NetIgnite 2, LLC . The Merged Corporation has good, clear and
marketable title to __ Units of NetIgnite 2, LLC (the "LLC"), free
and clear of all liens. The Merged Corporation has not transferred or
otherwise disposed of any interest in the LLC that it received upon
the formation and organization of the LLC.
4
(d) Absence of Liabilities and Obligations. The Merged Corporation does
not have any liabilities or obligations of any nature (whether known
or unknown, accrued, absolute, contingent or otherwise).
(e) Capitalization. Perry Evans is the sole shareholder of the Merged
Corporation. There are no options, warrants, or any other rights
obligating the Merged Corporation to issue, deliver or sell
additional shares of capital stock or other equity securities of the
Merged Corporation.
5
6.02 Representations and Warranties of the Surviving Corporation.
(a) Organization, Standing and Corporate Power. The Surviving Corporation
is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated and has the
requisite corporate power and authority to carry on its business as
now being conducted. The Surviving Corporation is duly qualified or
licensed to do business and is in good standing in each jurisdiction
in which the nature of its business or the ownership or leasing of
its properties makes such qualification or licensing necessary, other
than in such jurisdictions where the failure to be so qualified or
licensed (individually or in the aggregate) would not have a material
adverse effect with respect to the Merged Corporation.
6
(b) Authority; Noncontravention. The Surviving Corporation has all
requisite corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated by this Agreement.
The execution and delivery of this Agreement by the Surviving
Corporation and the consummation by the Surviving Corporation of the
transactions contemplated by this Agreement have been duly authorized
by all necessary corporate action on the part of the Surviving
Corporation and no other corporate action on the part of the
Surviving Corporation is necessary to authorize the execution and
delivery of this Agreement or the consummation by the Surviving
Corporation of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by and constitutes a valid and
binding obligation of the Surviving Corporation, enforceable against
it in accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions
hereof will not (a) conflict with or result in any breach of any
provision of the articles of incorporation or bylaws of the Surviving
Corporation, or (b) conflict with, or result in any breach or
violation of, or constitute a default under (with or without notice
or lapse of time, or both), or give rise to a right of termination,
cancellation or acceleration under (i) any loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to
the Surviving Corporation or its properties or assets or (ii) any
judgment, order, decree, statute, law, ordinance, rule, regulation or
arbitration award applicable to the Surviving Corporation or its
properties or assets, or (c) result in the creation of any lien upon
any of the properties or assets of the Surviving Corporation, other
than, in the case of clauses (b) and (c), any such conflicts,
breaches, violations, defaults, rights, losses or liens that
individually or in the aggregate could not have a material adverse
effect with respect to the Merged Corporation or could not prevent,
hinder or materially delay the ability of the Merged Corporation to
consummate the transactions contemplated by this Agreement. No
consent, approval, order or authorization of, or registration,
declaration or filing with, or notice to, any governmental entity is
required by or with respect to the Surviving Corporation or in
connection with the execution and delivery of this Agreement by the
Surviving Corporation or the consummation by the Surviving
Corporation, as the case may be, of any of the transactions
contemplated by this Agreement, except for (i) the filing with the
SEC of such reports under the Securities Act of 1933, as amended (the
"Securities Act") and the Securities Exchange Act of 1934 (the
"Exchange Act") as may be required in connection with this Agreement
and the transactions contemplated hereby, (ii) the filing of the
Articles of Merger with the Secretaries of State of the State of
Colorado and appropriate documents with the relevant authorities of
other states in which the Company is qualified to do business, and
(iii) such other consents, approvals, orders, authorizations,
registrations, declarations, filings or notices as may be required
under the "takeover" or "blue sky" laws of various states.
7
6.03 Representations and Warranties of the Sole Shareholder. The Sole
Shareholder is the sole shareholder of the Merged Corporation. The Sole
Shareholder has been given full access to information regarding the
Surviving Corporation (including the opportunity to meet with the officers
of the Surviving Corporation and to review all the documents that the Sole
Shareholder may have requested) and has utilized such access to his
satisfaction for the purpose of obtaining information necessary to make an
informed investment decision. The Sole Shareholder has sufficient
knowledge and experience in financial and business matters that the Sole
Shareholder is capable of evaluating the merits and risks of receiving the
Merger Shares. The Sole Shareholder understands that the receipt of the
Shares is a speculative investment and involves a high degree of economic
risk. The Merger Shares are being acquired for the Sole Shareholder's own
account and for investment without the intention of reselling or
redistributing the same, that no agreement has been made with others
regarding the Merger Shares and that the Sole Shareholder's financial
condition is such that it is not likely that it will be necessary to
dispose of any of such Merger Shares in the foreseeable future. There are
no options, warrants, or any other rights obligating the Merged
Corporation to issue, deliver or sell additional shares of capital stock
or other equity securities of the Merged Corporation. The Sole Shareholder
is a resident of the State of Colorado.
ARTICLE VII
Effect of the Merger
At the Effective Date of the Merger, the Surviving Corporation shall
succeed to and shall possess and enjoy all the rights, privileges, immunities,
powers and franchises, both of a public and private nature, of the Constituent
Corporations, and all property, real, personal, and mixed, including patents,
trademarks, tradenames, and all debts due to either of the Constituent
Corporations on whatever account, for stock subscriptions as well as for all
other things in action or all other rights belonging to either of said
corporations; and all said property, rights, privileges, immunities, powers and
franchises, and all and every other interest shall be thereafter the property of
the Surviving Corporation as effectively as they were of the respective
Constituent Corporations, and the title of any real estate vested by deed or
otherwise in either of said Constituent Corporations shall not revert or be in
any way impaired by reason of the Merger; provided, however, that all rights of
creditors and all liens upon any property of either of said Constituent
Corporations shall be preserved unimpaired, limited in lien to the property
affected by such liens prior to the Effective Date of the Merger, and all debts,
liabilities, and duties of said Constituent Corporations, respectively, shall
thenceforth attach to the Surviving Corporation and may be enforced against it
to the same extent as if said debts, liabilities, and duties had been incurred
or contracted in the first instance by the Surviving Corporation.
8
ARTICLE VIII
Accounting Matters
The assets and liabilities of the Constituent Corporations as of the
Effective Date of the Merger shall be taken up on the books of the Surviving
Corporation at the amounts at which they were carried at that time on the books
of the respective Constituent Corporations. The surplus of the Surviving
Corporation after the Merger, including any surplus arising in the Merger, shall
be available to be used for any lawful purposes for which surplus may be used.
Accounting procedures and depreciation schedules and procedures of any
Constituent Corporation may be converted to those procedures and schedules
selected by the Surviving Corporation.
ARTICLE IX
Filing of Plan of Merger
Upon adoption and approval of the Plan of Merger by the Board of Directors
of the Surviving Corporation and the Board of Directors and Shareholders of the
Merged Corporation, Articles of Merger shall be executed and delivered to the
Secretary of State of the State of Colorado for filing as provided by the
Colorado Business Corporation Act. The Constituent Corporations shall also
cause to be performed all necessary acts within the State of Colorado and
elsewhere to effectuate the Merger.
ARTICLE X
Registration of Parent Stock
Within sixty (60) days after the Effective Date, the Surviving Corporation
shall prepare and file a registration statement, covering the Merger Shares
issued to the Sole Shareholder in accordance with Section 5.02 of this Agreement
with the Securities and Exchange Commission (the "SEC") and use its best efforts
to cause the Registration Statement to be declared effective under the
Securities Act of 1933, as amended (the "Securities Act"), as promptly as
practicable after its filing. The Registration Statement shall be on form SB-2,
Form S-1, Form S-3 or such other form as is appropriate in order to register
such Merger Shares with the SEC pursuant to section 5 of the Securities Act. The
Surviving Corporation shall use its best efforts to cause the Registration
Statement to be declared effective by the SEC as soon as possible following the
filing thereof and shall use its best efforts to maintain the Registration
Statement continually effective under the Securities Act for a period of two (2)
years after the date on which the Registration Statement is declared effective
by the SEC. Notwithstanding the Registration Statement, if in connection with a
public offering of the Surviving Corporation's stock, the Surviving Corporation,
an underwriter, the National Association of Dealers, Inc., or the Nasdaq Stock
Market requests certain holders of the Surviving Corporation's outstanding stock
to lock-up certain of the Surviving Corporation's stock or any portion thereof,
the Sole Shareholder agrees that beginning on the date of the closing of such
public offering and continuing for a period of six (6) months thereafter, the
Sole Shareholder shall not, without consent of the requesting party, offer,
sell, contract to sell, pledge, hypothecate, or otherwise dispose of any shares
of the Surviving Corporation's stock.
ARTICLE XI
General Provisions
9
The respective representations and warranties of each of the parties to
this Agreement shall not be deemed to be waived or otherwise affected by any
investigation made by the other parties to this Agreement. The representations
of the Merged Corporation and the Surviving Corporation contained in this
Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Merger. Neither party may assign this Agreement or delegate the
rights and responsibilities hereunder without the other party's prior written
consent. No amendment to this Agreement or waiver of the rights or obligations
of either party shall be effective unless in writing signed by the parties. This
Agreement is governed by the laws of the State of Colorado without regard to
conflicts of laws principles. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or
unenforceable. This Agreement contains the entire agreement and understanding
of the parties concerning the subject matter of this Agreement. This Agreement
may be signed by facsimile and in counterparts.
Executed as of the date first written above.
ONLINE SYSTEM SERVICES, INC.
By /s/ R. Steven Adams
-------------------------------
R. Steven Adams, President and Chief Executive Officer
NETIGNITE, INC.
By /s/ Perry Evans
-------------------------------
Perry Evans, President
SOLE SHAREHOLDER (as to Section 6.03 only)
/s/ Perry Evans
---------------------------------
Perry Evans
10
JOINT WRITTEN ACTION
BY THE SOLE DIRECTOR
AND THE SOLE SHAREHOLDER
OF NETIGNITE, INC.
The undersigned, being the sole shareholder and the sole director of
NetIgnite, Inc., a Colorado corporation ("Corporation"), acting pursuant to
Colorado Statutes Sections 7-107-104 and 7-108-202, hereby adopt the following
resolutions effective _________, 1999.
RESOLVED, that the Plan of Merger dated ____________, 1999, which is
attached hereto and hereby incorporated herein, for the merger of
NetIgnite, Inc., with and into Online System Services, Inc., be, and it
hereby is approved and adopted.
FURTHER RESOLVED, that the President of the Corporation be, and hereby is,
authorized and directed to execute Articles of Merger and to cause such
Articles of Merger to be filed in the Colorado Secretary of State.
FURTHER RESOLVED, that the officers of the Corporation be, and they hereby
are, authorized and directed to execute such documents and to take such
other actions as they, acting singly or jointly, deem necessary or
desirable to effectuate the foregoing resolutions and the Plan of Merger
approved in the foregoing resolutions.
Executed as of the date first written above.
/s/ Perry Evans
---------------------------------
Perry Evans
Sole Shareholder and Sole Director
11