Exhibit 10.05
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this "Agreement"), dated as of
November 20, 1996, is made and entered into by and among West TeleServices
Corporation, a Delaware corporation (the "Company"), and the undersigned
individuals (the "Stockholders"), being the owners of record of all of the
issued and outstanding stock of West Telemarketing Corporation, a Delaware
corporation ("WTC"), West Interactive Corporation, a Delaware corporation
("WIC"), West Telemarketing Corporation Outbound, a Delaware corporation
("WTCO"), West Interactive Canada, Inc., a Delaware corporation ("WICI"), and
Interactive Billing Services, Inc., a Delaware corporation ("IBS"). WTC, WIC,
WTCO, WICI and IBS are hereinafter collectively referred to as the "West
Affiliates."
Now, therefore, the Company and each of the Stockholders adopt this plan of
reorganization and agree as follows:
Article I.
Exchange and Purchase of Stock
Section 1.1. Number of Shares.
(a) The Stockholders agree to transfer to the Company at the Closing (as
hereinafter defined) the number of shares of common stock of each of WTC, WIC
and WTCO shown opposite their names in Exhibit "A" in exchange for 56,775,000
shares of common stock of the Company, in the aggregate, in such amounts as
shown opposite their names in Exhibit "A."
(b) The Stockholders agree to sell and transfer to WIC, and WIC agrees to
purchase, at the Closing the number of shares of common stock of each of WICI
and IBS shown opposite their names in Exhibit "A." The purchase price for each
share of common stock of WICI and IBS shall be $.25, payable in cash,
immediately available funds, or such other medium of payment as the Stockholders
may in their discretion accept.
Section 1.2. Delivery of Certificates.
The transfer of the shares of each of the West Affiliates by the
Stockholders shall be effected by the delivery to the Company or WIC, as
applicable, at the Closing of certificates representing the transferred shares
endorsed in blank or accompanied by stock powers executed in blank. The Company
or WIC, as applicable, shall issue, or cause to be issued, to each of the
Stockholders certificates representing shares of common stock of the Company or
WIC, as applicable, to be received by the Stockholders hereunder.
Section 1.3. Further Assurances.
At the Closing and from time to time thereafter, the Stockholders shall
execute such additional instruments and take such other action as the Company
may request in order more effectively to sell, transfer, and assign the
transferred stock to the Company and to confirm the Company's title thereto.
Section 1.4. Changes in the Company's Capitalization.
If between the date of this Agreement and the Closing, the outstanding
shares of the Company common stock are, without the receipt of new consideration
by the Company, increased, decreased, changed into, or exchanged for a different
number or kind of shares or securities of the Company through reorganization,
reclassification, stock dividend, stock split, reverse stock split, or similar
change in the Company's capitalization, the Company will issue and deliver to
the Stockholders in addition to or in lieu of the Company shares specified in
Section 1.01, voting stock of the Company in equitably adjusted amounts. In the
event of any such change in the Company's capitalization, all references to
shares of the Company's common stock herein shall refer to the number of such
shares as thus adjusted.
Article II.
Closing
The closing of this Agreement and the transactions contemplated hereunder
(the "Closing") shall take place prior to the closing of that certain offering
of the Company's common stock pursuant to a Registration Statement on Form S-1,
as amended (file no. 333-13991) (the "Public Offering"), as originally filed
with the Securities and Exchange Commission on or about October 11, 1996, at the
corporate offices of the Company, unless another place or time is agreed upon by
the parties.
Article III.
Representations and Warranties of the Stockholders
Each of the Stockholders represent and warrant to the Company (but only to
the extent that such representation and warranty relates to a corporation in
which such Stockholder is a stockholder) as follows:
Section 3.1. Corporate Status.
Each of the West Affiliates is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and is
licensed or qualified as a foreign corporation in all states in which the nature
of its business or the character or ownership of its properties makes such
licensing or qualification necessary, except where the failure to so qualify
would not have a material adverse effect on the business, properties, prospects,
profits or condition (financial or otherwise) of the West Affiliates taken as a
whole (a "Material Adverse Effect").
Section 3.2. Capitalization.
The authorized capital stock of each of the West Affiliates, together with
the number of shares thereof issued and outstanding, are set forth at Exhibit
"B" hereto. The respective issued and outstanding shares of the West Affiliates
have been duly and validly issued and are fully paid and nonassessable.
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Section 3.3. Title to Property; Condition of Property.
Each of the West Affiliates has good title to their properties and assets,
real and personal, and good title to all their leasehold estates, in each case
subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than
or resulting from taxes which have not yet become delinquent and minor liens and
encumbrances which do not in any case materially detract from the value of the
property subject thereto or materially impair the operations of the respective
West Affiliates and which have not arisen otherwise than in the ordinary course
of business. All facilities, machinery, equipment, fixtures, vehicles and other
properties owned, leased or used by each of the West Affiliates are in good
operating condition and repair, are reasonably fit and usable for the purposes
for which they are being used, are adequate and sufficient for the respective
West Affiliates' businesses and conform in all material respects with all
applicable ordinances, regulations and laws.
Section 3.4. Access to Records, Etc.
From the date of this Agreement to the Closing, the Stockholders will use
their reasonable best efforts to cause each of the West Affiliates (1) to give
the Company and its representatives full access during normal business hours to
all of their respective offices, books, records, contracts, and other corporate
documents and properties for inspection and (2) to furnish such information
concerning their respective properties and affairs as the Company may reasonably
request.
Section 3.5. Title to Shares.
The Stockholders are the owners, free and clear of any liens and
encumbrances, of the number of shares of each of the West Affiliates which the
Stockholders have contracted to exchange or sell.
Article IV.
Representations, Warranties, and Covenants of the Company
The Company represents and warrants to, and covenants with, each of the
Stockholders as follows:
Section 4.1. Corporate Status.
The Company is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware and is licensed or qualified as
a foreign corporation in all states in which the nature of its business or the
character or ownership of its properties makes such licensing or qualification
necessary, except where the failure to so qualify would not have a Material
Adverse Effect.
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Section 4.2. Capitalization.
The authorized capital stock of the Company is 210,000,000 shares, of which
200,000,000 shares are denominated as "Common Stock" and 10,000,000 shares are
denominated as "Preferred Stock." The issued and outstanding shares of capital
stock of the Company consists of one thousand (1,000) shares of common stock
which are held beneficially and of record by the person and in the amounts set
forth at Exhibit "C" hereto, which shares shall be canceled as of the Closing.
All the outstanding shares of capital stock of the Company have been duly and
validly issued and are fully paid and nonassessable. Upon issuance, transfer
and delivery as contemplated by this Agreement, the shares of common stock to be
issued to the Stockholders will be duly authorized, validly issued, fully paid
and nonassessable shares of the Company, free of all preemptive or similar
rights, and entitled to the rights therein described.
Section 4.3. Title to Property.
The Company has no material assets or properties as of the date of this
Agreement.
Section 4.4. Litigation.
There is no litigation or proceeding pending, or to the Company's
knowledge threatened, against or relating to the Company.
Section 4.5. Access to Records, Etc.
From the date of this Agreement to the Closing, the Company will (1) give
to the each of the Stockholders and their respective representatives full access
during normal business hours to all of its offices, books, records, contracts,
and other corporate documents and properties for inspection and (2) furnish such
information concerning the Company's properties and affairs as each of the
Stockholders may reasonably request.
Section 4.6. Investment Intent.
The Company is acquiring the shares of each of the West Affiliates to be
transferred to it under this Agreement for its own account for investment and
not with a view towards the resale, transfer or distribution thereof, nor with
any present intent of distributing the shares, but subject, nevertheless, to any
requirement of law that the disposition of the Company's property shall at all
times be within the Company's control, and without prejudice to the Company's
right at all times to sell or otherwise dispose of all or any part of such
securities under a registration under the Securities Act of 1933, as amended
(the "Securities Act"), or under an exemption from said registration available
under the Securities Act.
Section 4.7. Corporate Authority.
The Company has full corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder.
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Section 4.8. Due Authorization; Absence of Violation.
Execution of this Agreement and performance by the Company hereunder has
been duly authorized by all requisite corporate action on the part of the
Company, and this Agreement constitutes a valid and binding obligation of the
Company. The execution and delivery of this Agreement and the fulfillment of
the terms hereof by the Company will not result in a violation of any of the
terms of the Restated Certificate of Incorporation and Restated Bylaws of the
Company, or any rule or regulation of any court or federal, state or foreign
regulatory board or body or administrative agency having jurisdiction over the
Company or over its property or its business.
Article V.
Conduct of West Affiliates Pending the Closing.
Each of the Stockholders agree that each of the West Affiliates will
conduct itself in the following manner pending the Closing:
Section 5.1. Certificate of Incorporation and Bylaws.
No change will be made in any of the West Affiliates' respective
certificates of incorporation or bylaws.
Section 5.2. Capitalization, Etc.; Declaration of Dividend
None of the West Affiliates will make any change in their respective
authorized or issued capital stock, or issue, encumber, purchase, or otherwise
acquire any of its capital stock without the prior written consent of the
Company. Notwithstanding the foregoing, each of the West Affiliates shall prior
to the Closing declare one or more dividends, which dividends may be paid in
cash or promissory notes made payable to each of the Stockholders.
Section 5.3. Conduct of Business and Maintenance of Existence.
Each of the West Affiliates will continue to engage in business of the same
general type as now conducted by it, and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights and privileges necessary or desirable in the normal conduct of its
business. Each of the West Affiliates will use its reasonable best efforts to
maintain and preserve employee relationships, and goodwill intact, and will not,
without the written consent of the Company, enter into any material commitment
except in the ordinary course of business.
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Article VI.
Conduct of the Company Pending the Closing
The Company agrees that between the date hereof and the Closing:
Section 6.1. Capitalization, Etc.
The Company will make no change in its authorized or issued capital stock,
declare or pay any dividend or other distribution, or issue, encumber, purchase,
or otherwise acquire any of its capital stock, except as contemplated herein.
Section 6.2. Conduct of Business and Maintenance of Existence.
The Company will continue to engage in business of the same general type as
now conducted by it, and preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights and
privileges necessary or desirable in the normal course of its business. The
Company will use its best efforts to maintain and preserve its employee
relationships and goodwill intact.
Article VII.
Conditions Precedent--the Company
All obligations of the Company under this Agreement are subject, at the
Company's option, to the fulfillment, before or at the Closing, of each of the
following conditions:
Section 7.1. Representations and Warranties True at Closing.
The Stockholders' representations and warranties contained in this
Agreement shall be deemed to have been made again at and as of the Closing and
shall then be true in all material respects.
Section 7.2. Due Performance.
The Stockholders shall have performed and complied with all the terms and
conditions required by this Agreement to be performed or complied with by them
before the Closing.
Section 7.3. Waiver and Termination of Stockholders' Agreements.
Each of the Stockholders and each of the West Affiliates shall have waived
all of their respective rights under those certain agreements set forth at
Exhibit "D" hereto to which they, or any of them, may be a party arising by
reason of the transactions contemplated under this Agreement and shall have
caused such agreements to be terminated effective as of the Closing.
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Article VIII.
Conditions Precedent -- the Stockholders
All obligations of the Stockholders under this Agreement are subject, at
their option, to the fulfillment, before or at the Closing, of each of the
following conditions:
Section 8.1. Representations and Warranties True at Closing.
The Company's representations and warranties contained in this Agreement
shall be deemed to have been made again at and as of the Closing and shall then
be true in all material respects.
Section 8.2. Due Performance.
The Company shall have performed and complied with all the terms and
conditions required by this Agreement to be performed or complied with by it
before the Closing.
Section 8.3. Registration Rights Agreement.
The Company and each of the Stockholders who, upon consummation of the
transactions contemplated herein, shall hold shares of the Company's common
stock, shall have entered into a registration rights agreement substantially in
the form of Exhibit "E" hereto.
Article IX.
Termination
This Agreement may be terminated (1) by mutual consent in writing; (2) by
either the Stockholders or the Company if there has been a material
misrepresentation or material breach of any warranty or covenant by the other
party; or (3) by either the Stockholders or the Company if the Closing shall not
have taken place, unless adjourned to a later date by mutual consent in writing,
by December 31, 1996.
Article X.
Stockholders' Representatives
The Stockholders hereby irrevocably designate and appoint ▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇, or either of them, as their agents and attorneys in fact (the
"Stockholders' Representatives") with full power and authority until the Closing
to execute, deliver, and receive on their behalf all notices, requests, and
other communications hereunder; to fix and alter on their behalf the date, time,
and place of the Closing; to waive, amend, or modify any provisions of this
Agreement, and to take such other action on their behalf in connection with this
Agreement, the Closing, and the transactions contemplated hereby as such agent
or agents deem appropriate; provided, however, that no such waiver, amendment,
or modification may be made if it would decrease the number of shares to be
issued to the Stockholders under Article I hereof.
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Article XI.
General Provisions
Section 11.1. Waiver.
This Agreement may not be released, discharged or modified except by an
instrument in writing signed on behalf of any of the parties hereto. The
failure of any party to enforce any provision of this Agreement shall not be a
waiver of any other provision or subsequent breach of the same or any other
obligation hereunder.
Section 11.2. Brokers.
Each party represents that no broker or finder has acted for it in
connection with this Agreement and agrees to indemnify and hold harmless the
other party against any fee, loss, or expense arising out of claims by brokers
or finders employed or alleged to have been employed by it.
Section 11.3. Tax Filings.
The Stockholders and the Company agree to comply with the filing
requirements imposed by Section 1.351-3 of the Treasury Regulations for the
taxable year of the transfer.
Section 11.4. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been given if delivered in person or sent by overnight
courier, prepaid first-class registered or certified mail, return receipt
requested, as follows:
If to the Company: West TeleServices Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to any of the Stockholders, at such address as shown in the books and
records of the West Affiliates, or any of them.
Section 11.5. Entire Agreement.
This Agreement constitutes the entire agreement between the parties and
supersedes and cancels any other agreement, representation, or communication,
whether oral or written, between the parties hereto relating to the transactions
contemplated herein or the subject matter hereof.
Section 11.6. Headings.
The article and section headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
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Section 11.7. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Nebraska.
Section 11.8. Assignment.
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their successors and assigns; provided, however, that any
assignment by any party of its rights under this Agreement without the written
consent of the other party shall be void.
Section 11.9. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
In witness whereof, the parties have executed this Agreement as of the day
and year first above written.
WEST TELESERVICES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Offer
WEST TELEMARKETING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
WEST INTERACTIVE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
WEST TELEMARKETING CORPORATION OUTBOUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
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STOCKHOLDERS
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