EXHIBIT 6.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Merger Agreement"), is entered into as
of March 15, 2002, by and between E-data Corporation, a Utah corporation
("E-data"), and E-data Corporation, a Delaware corporation and wholly-owned
subsidiary of E-data ("E-data Delaware").
W I T N E S S E T H:
WHEREAS, E-data is a corporation, duly organized and existing under the
laws of the State of Utah having at the date hereof authorized capital stock of
50,000,000 shares of common stock, par value $.002 per share ("Utah Common
Stock"), of which 19,327,107 shares of Utah Common Stock are issued and
outstanding; and
WHEREAS, E-data Delaware is a corporation duly organized and existing under
the laws of the State of Delaware, having at the date hereof authorized capital
stock of 50,000,000 shares of common stock, par value $.001 per share ("Delaware
Common Stock") and 10,000,000 shares of preferred stock, par value $.001
("Delaware Preferred Stock") of which 1,000 shares of Delaware Common Stock are
issued and outstanding and held by E-data; and
WHEREAS, all the holders of Utah Common Stock and Delaware Common Stock are
entitled to vote; and
WHEREAS, E-data desires to reincorporate into the State of Delaware by
merging with and into E-data Delaware with E-data Delaware continuing as the
surviving corporation in such merger, upon the terms and subject to the
conditions herein set forth and in accordance with the laws of the State of
Delaware.
NOW, THEREFORE, in consideration of the premises and mutual agreements,
provisions and covenants contained herein, and subject to the terms and
conditions hereof, the parties hereto do hereby agree as follows:
ARTICLE I
The Merger
Section 1.1. Merger of E-data into E-data Delaware. At the Effective Time
(as defined in Section 2.1 hereof), E-data shall merge with and into E-data
Delaware in accordance with the Utah Business Corporation Act (the "BCA") and
the General Corporation Law of the State of Delaware (the "GCL"). The separate
existence of E-data shall thereupon cease and E-data Delaware shall be the
surviving corporation (hereinafter sometimes referred to as the "Surviving
Corporation") and shall possess all the rights, privileges, powers and
franchises of a public as well as of a private nature, and be subject to all the
restrictions, disabilities and duties of each of E-data and E-data Delaware
(together sometimes referred to as the "Constituent Corporations"); and all and
singular, the rights, privileges, powers and franchises of each of the
Constituent Corporations, and all property, real, personal and mixed, and all
debts due to either of the Constituent Corporations, on whatever account, as
well as for stock subscriptions as all other things in action or belonging to
each of the Constituent Corporations, shall be vested in the Surviving
Corporation; and all property, rights, privileges, powers and franchises, and
all and every other interest shall be thereafter as effectually the property of
the Surviving Corporation as they had been of the several and respective
Constituent Corporations, and the title to any real estate vested by deed or
otherwise, under the laws of the State of Delaware, in either of such
Constituent Corporations shall not revert or be in any way impaired by reason of
the GCL; but all rights of creditors and all liens upon any property of any of
the Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities and duties of the respective Constituent Corporations shall
thereafter attach to the Surviving Corporation and may be enforced against it to
the same extent as if those debts, liabilities and duties had been incurred or
contracted by it. All corporate acts, plans, policies, agreements, arrangements,
approvals and authorizations of E-data, its shareholders, Board of Directors and
committees thereof, officers and agents which were valid and effective
immediately prior to the Effective Time, shall be taken for all purposes as
acts, plans, policies, agreements, arrangements, approvals and authorizations of
E-data Delaware and shall be as effective and binding thereon as the same were
with respect to E-data. The employees and agents of E-data shall become the
employees and agents of E-data Delaware and continue to be entitled to the same
rights and benefits which they enjoyed as employees and agents of E-data. The
requirements of any plans or agreements of E-data involving the issuance or
purchase by E-data of certain shares of its capital stock shall be satisfied by
the issuance or purchase of a like number of shares of E-data Delaware.
ARTICLE II
Effective Time; Effect of Merger
Section 2.1. Effective Time. The Merger shall become effective upon the
date the Certificate of Merger is filed by the Surviving Corporation with the
Department of State of the State of Utah pursuant to Section 1105 of the BCA, or
the date a Certificate of Ownership and Merger is filed by the Surviving
Corporation with the Secretary of State of the State of Delaware pursuant to
Section 253 of the GCL, whichever filing occurs last (the "Effective Time").
Section 2.2. Effects of the Merger. (a) At the Effective Time, the Merger
shall have the effects specified in the BCA, the GCL and this Merger Agreement.
(b) At the Effective Time, the Certificate of Incorporation and Bylaws of
E-data Delaware as in effect immediately prior to the Effective Time shall
continue to be the Certificate of Incorporation and Bylaws of the Surviving
Corporation.
(c) At the Effective Time, the directors and officers of E-data in office
at the Effective Time shall retain their positions as the directors and
officers, respectively, of the Surviving Corporation.
ARTICLE III
Conversion and Exchange of Stock
Section 3.1. Conversion.
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(a) Shares. At the Effective Time, each share of Utah Common Stock issued
and outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and become one share of Delaware Common Stock.
(b) Options, Rights and Warrants. At the Effective Time, options, rights
and warrants to acquire shares of New York Common Stock outstanding immediately
prior to the Effective Time shall be automatically converted into options,
rights and warrants to acquire an equal number of shares of Delaware Common
Stock at the same price and upon the same terms and subject to the same
conditions as in effect at the Effective Time. The same number of shares of
Delaware Common Stock shall be reserved for purposes of exercise of options
under any stock option or similar plans as is equal to the shares of New York
Common Stock so reserved as of the Effective Time. E-data Delaware hereby
assumes the outstanding and unexercised portion of such options, rights and
warrants and the obligations of E-data to issue shares upon exercise thereof.
(c) Cancellation. At the Effective Time, each share of Delaware Common
Stock issued and outstanding immediately prior to the Effective Time and held by
E-data shall be canceled without any consideration being paid therefor, and such
shares shall, without further action by the Board of Directors of E-data
Delaware, be returned to the status of authorized but unissued shares.
Section 3.2. Exchange of Certificates. At any time on or after the
Effective Time of the Merger, the holders of Utah Common Stock will be entitled,
upon surrender of such certificates to the Surviving Corporation, to receive in
exchange therefor one or more new stock certificates evidencing ownership of the
same number of shares of Delaware Common Stock. If any certificate representing
shares of Delaware Common Stock is to be issued in a name other than that in
which the certificate surrendered in exchange therefor is registered, it shall
be a condition of the issuance thereof that the certificate or other writing so
surrendered shall be properly endorsed and otherwise in proper form for
transfer, and that the person requesting such exchange shall pay to the
Surviving Corporation or its transfer agent any transfer or other taxes required
by reason of the issuance of a certificate representing shares of Delaware
Common Stock in any name other than that of the registered holder of the
certificate surrendered, or otherwise required, or shall establish to the
satisfaction of the transfer agent that such tax has been paid or is not
payable.
ARTICLE IV
Conditions Precedent to Consummation of the Merger
Section 4.1. Conditions. Consummation of the Merger is subject to the
satisfaction at or prior to the Effective Time of the following conditions:
(a) Approval. This Merger Agreement and the Merger shall have been adopted
and approved by E-data in the manner provided in Sections 1104 and 1107 of the
BCA and by E-data Delaware in the manner provided in Section 253 of the GCL; and
(b) Third Party Consents. The parties shall have received all required
consents to and approvals of the Merger.
ARTICLE V
Miscellaneous
Section 5.1. Amendment. This Merger Agreement may be amended, modified or
supplemented, in whole or in part, at any time prior to the Effective Time with
the mutual consent of the Board of Directors of E-data and the Board of
Directors of E-data Delaware to the full extent permitted under applicable law.
Section 5.2. Abandonment; Postponement. At any time prior to the Effective
Time this Merger Agreement may be terminated and the Merger may be abandoned by
the Board of Directors of E-data or E-data Delaware or both, or the consummation
of the Merger may be postponed for a reasonable period of time, without any
action of the stockholders of E-data or E-data Delaware, notwithstanding the
approval of this Merger Agreement by the stockholders of either E-data or E-data
Delaware.
Section 5.3. Further Assurances. If at any time after the Effective Time of
the Merger, the Surviving Corporation shall consider that any assignments,
transfers, deeds or other assurances in law are necessary or desirable to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation, title
to any property or rights of E-data, E-data and the directors and officers of
E-data in office at the Effective Time shall execute and deliver such documents
and do all things necessary and proper to vest, perfect or confirm title to such
property or rights in the Surviving Corporation.
Section 5.4. Governing Law. This Merger Agreement shall be construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties to this Merger Agreement have executed this
Merger Agreement on and as of the day first written above.
E-data Corporation,
a Utah corporation
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chairman and CEO
E-data Corporation,
a Delaware corporation
By: s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chairman and CEO
