EXHIBIT 2.1
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER is made as of August 24, 1999, by and
between U.S. Audiotex Corporation, a Delaware corporation (the "Corporation"),
and U.S. Audiotex, LLC, a California limited liability company (the "LLC" and
collectively with the Corporation, the "Constituent Entities").
WHEREAS, the board of directors of the Corporation (the "Board
of Directors") and the stockholders of the Corporation have determined that it
is desirable and in the best interests of the Corporation and its stockholders
that the LLC be merged with and into the Corporation on the terms and conditions
set forth herein, and the Board of Directors and stockholders of the Corporation
have approved this Agreement of Merger.
WHEREAS, the management committee of the LLC (the "Management
Committee") has determined that it is desirable and in the best interests of the
LLC and its members (the "Members") that the LLC be merged with and into the
Corporation on the terms and conditions set forth herein, and the Management
Committee and Members of the LLC have approved this Agreement of Merger.
NOW, THEREFORE, in order to implement the foregoing, the
parties agree as follows:
1. Merger. At the Effective Time (as defined in Section 2
hereof), the LLC shall be merged with and into the Corporation (the "Merger")
pursuant to the provisions of, and with the effect provided in, the Delaware
General Corporation Law (the "DGCL") and Chapter 12 of the Beverly-Killea
Limited Liability Company Act of California (the "LLC Act"). The Corporation
shall be the surviving corporation of the Merger (the "Surviving Corporation")
and shall continue to be governed by the DGCL. The separate existence of the LLC
shall cease at the Effective Time. The corporate existence of the Surviving
Corporation shall continue unimpaired and unaffected by the Merger.
2. Effective Time of the Merger. The Merger shall become
effective upon the filing of a certificate of merger (the "Delaware Certificate
of Merger") with the Secretary of State of the State of Delaware and the filing
a certificate of merger with the Secretary of State of the State of California
(the "California Certificate of Merger") in accordance with Section 264 of the
DGCL and Section 17552 of the LLC Act, respectively, which time is herein
sometimes referred to as the "Effective Time."
3. Directors and Officers. The officers and directors of
the Corporation holding office at the Effective Time shall hold office in the
Surviving Corporation until removed as provided by law or until the election and
qualification of their respective successors.
4. Conversion of Interests.
4.1 Conversion of Membership Interests. Upon the Effective
Time, each membership interest in the LLC outstanding immediately prior to the
Effective Time shall be converted by reason of the Merger and without any action
on the part of the holders of any such
membership interests into and shall become 49,990 shares of fully paid and
nonassessable shares of common stock, par value $0.01 per share (the "Common
Stock"), of the Surviving Corporation for each percent of the sharing ratio
represented by such membership interest.
4.2 Conversion of Common Stock. Upon the Effective Time,
each share of common stock of the Corporation issued and outstanding immediately
prior thereto shall remain issued, outstanding and unchanging as a validly
issued, fully paid and nonassessable share of Common Stock of the Surviving
Corporation.
5. Assumption of Obligations. At the Effective Time, the
franchises, existence and rights of the LLC shall be merged into the Corporation
and the Corporation shall, as the Surviving Corporation, be fully vested
therewith. At the Effective Time, (a) the Surviving Corporation shall possess
all of the rights, privileges, powers and franchises and be subject to all of
the restrictions, disabilities and duties of each of the Constituent Entities;
(b) all property, real, personal and mixed, and all debts due to either of the
Constituent Entities on whatever account, including stock subscriptions, and all
other things in action and all and every other interest of or belonging to or
due to each of the Constituent Entities, shall be taken and deemed to be
transferred to and vested in the Surviving Corporation without further act or
deed; (c) all property, rights, privileges, powers, franchises and all and every
other interest of each of the Constituent Entities shall be thereafter as
effectually the property of the Surviving Corporation as they had been of the
respective Constituent Entities; and (d) the title to any real property, or any
interest therein, which has vested by deed or otherwise in either of the
Constituent Entities, shall not revert to the transferor thereof, or be in any
way impaired, by reason of the Merger. The Surviving Corporation shall assume
and thenceforth be responsible and liable for all the liabilities and
obligations of each of the Constituent Entities.
6. Approval by the Board of Directors and Stockholders and
the Management Committee and Members. The terms and conditions of the Merger and
this Agreement of Merger have been unanimously approved by the Board of
Directors and stockholders of the Corporation and by the Management Committee
and Members of the LLC.
7. Further Acts. From time to time, as or when requested by
the Surviving Corporation, or by its successors or assigns, the LLC shall
execute and deliver or cause to be executed and delivered all such other
instruments, and shall take or cause to be taken all such further or other
actions, as the Surviving Corporation, or its successors or assigns, may deem
necessary or desirable in order to vest in and confirm to the Surviving
Corporation and its successors and assigns, title to and possession of all of
the property, rights, privileges, powers and franchises referred to in Section 5
hereof and otherwise to carry out the intent and purposes of this Agreement of
Merger.
8. Amendment. The Constituent Entities, by mutual consent
of their respective Board of Directors and Management Committee, as applicable,
may amend, modify or supplement this Agreement of Merger in such manner as may
be agreed upon by them in writing at any time before or after the adoption and
approval of this Agreement of Merger by the stockholders and the Members of the
Constituent Entities. If any amendment, modification or supplement changes any
of the principal terms of this Agreement of Merger, then said
2
amendment, modification or supplement to this Agreement of Merger shall be
approved by the stockholders and the Members of the Constituent Entities.
9. Abandonment.
9.1 Pursuant to Section 251(d) of the DGCL, the Board of
Directors of the Corporation may, at any time prior to the filing of the
Delaware Certificate of Merger with the Secretary of State of the State of
Delaware and the California Certificate of Merger with the Secretary of State of
the State of California, abandon and terminate this Agreement of Merger
notwithstanding approval of this Agreement of Merger by the stockholders of the
Corporation and the Members of the LLC.
9.2 Pursuant to Section 17551(d) of the LLC Act, subject to
the rights of third parties under any contracts relating thereto, the Management
Committee of the LLC may, at any time prior to the filing of the Delaware
Certificate of Merger with the Secretary of State of the State of Delaware and
the California Certificate of Merger with the Secretary of State of the State
California, abandon and terminate this Agreement of Merger notwithstanding
approval of this Agreement of Merger by the stockholders of the Corporation and
the Members of the LLC.
10. Miscellaneous.
10.1 Address of Surviving Corporation. The address of the
Surviving Corporation for purposes of the delivery of notices regarding any
matter relating to the Merger and the transactions contemplated in this
Agreement of Merger is as follows:
U.S. Audiotex Corporation
18 Crow Canyon Court, Suite 300
San Ramon, California 94583
Attention: Corporate Secretary
10.2 Counterparts. This Agreement of Merger may be executed
in one or more counterparts, and each such counterpart hereof shall constitute
but one agreement.
10.3 Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement of Merger.
10.4 Governing Law. This Agreement of Merger shall be
governed by, and construed in accordance with, the laws of the State of Delaware
without regard to the conflicts of law principles thereof.
3
IN WITNESS WHEREOF, each of the parties hereto have caused
this Agreement of Merger to be executed on their behalf as of the day first
written above.
U.S. AUDIOTEX CORPORATION,
a Delaware corporation
By: /s/ BRIAN W. NOCCO
--------------------------------------
Name: Brian W. Nocco
Title: Director
U.S. AUDIOTEX, LLC,
a California limited liability company
By: /s/ BRIAN W. NOCCO
--------------------------------------
Name: Brian W. Nocco
Title: CEO
4