Attached files
file | filename |
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10-Q - EASYLINK SERVICES INTERNATIONAL CORP | v214507_10q.htm |
EX-3.7 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-7.htm |
EX-3.4 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-4.htm |
EX-3.1 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-1.htm |
EX-3.6 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-6.htm |
EX-3.3 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-3.htm |
EX-3.2 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-2.htm |
EX-3.8 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-8.htm |
EX-3.9 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex3-9.htm |
EX-32.1 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex32-1.htm |
EX-31.2 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex31-2.htm |
EX-32.2 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex32-2.htm |
EX-31.1 - EASYLINK SERVICES INTERNATIONAL CORP | v214507_ex31-1.htm |
EXHIBIT
3(i).5
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
DELIVERED 01:14 PM 08/20/2007
FILED 01:14 PM 08/20/2007
070936690 2279234
SECRETARY OF STATE
DIVISION OF CORPORATIONS
DELIVERED 01:14 PM 08/20/2007
FILED 01:14 PM 08/20/2007
070936690 2279234
CERTIFICATE OF OWNERSHIP AND MERGER
OF
INTERNET COMMERCE CORPORATION,
a Delaware corporation
AND
ENABLE CORP.,
a Delaware corporation
OF
INTERNET COMMERCE CORPORATION,
a Delaware corporation
AND
ENABLE CORP.,
a Delaware corporation
Pursuant to Section 253 of the
Delaware General Corporation Law
Delaware General Corporation Law
INTERNET COMMERCE CORPORATION, a corporation organized and existing under the laws of the
State of Delaware, does hereby certify the following as the surviving corporation in a merger
between a Delaware parent corporation and a wholly-owned Delaware subsidiary corporation:
1. | Internet Commerce Corporation owns all of the outstanding capital stock of Enable
Corp., a Delaware corporation. |
2. | A merger has been approved by the Board of Directors of Internet Commerce Corporation
and by the Board of Directors and sole stockholder of Enable Corp. in accordance with the
Delaware General Corporation Law. |
3. | Internet Commerce Corporation, pursuant to Section 253 of the Delaware General
Corporation Law, by the attached resolutions of its Board of Directors, does merge Enable
Corp. with and into itself, with INTERNET COMMERCE CORPORATION being the surviving
corporation, effective as of August 20, 2007. |
4. | The resolutions of the Board of Directors of Internet Commerce Corporation and the Plan
of Merger, adopted by the Board of Directors of Internet Commerce Corporation on August 20,
2007 and by the Board of Directors and sole stockholder of Enable Corp. on August 20, 2007,
are attached hereto. |
5. | The name of the surviving corporation shall be EasyLink Services International
Corporation. |
6. | This Certificate shall be effective as of August 20, 2007. |
IN WITNESS WHEREOF, said INTERNET COMMERCE CORPORATION has caused its corporate seal to be
affixed and this Certificate to be signed by an authorized officer on this 20th day of August,
2007.
INTERNET COMMERCE CORPORATION |
||||
By: | /s/ Glen E. Shipley | |||
Glen E. Shipley | ||||
Chief Financial Officer |
-2-
PLAN OF MERGER
OF
ENABLE CORP.
WITH AND INTO
INTERNET COMMERCE CORPORATION
OF
ENABLE CORP.
WITH AND INTO
INTERNET COMMERCE CORPORATION
THIS PLAN OF MERGER (this Plan of Merger), dated as of August 20, 2007, is made by and
between Internet Commerce Corporation, a Delaware corporation (the Parent Company), and Enable
Corp., a Delaware corporation (the Subsidiary and, together with the Parent Company, the
Constituent Corporations).
WHEREAS, the Parent Company owns 100% of the outstanding shares of capital stock of the
Subsidiary, and the Constituent Corporations have agreed to the merger of the Subsidiary with and
into the Parent Company;
WHEREAS, the Parent Company, as the sole shareholder of the Subsidiary, and the respective
Boards of Directors of the Parent Company and the Subsidiary have each approved the merger of the
Subsidiary with and into the Parent Company in accordance with the Delaware General Corporation Law
(the DGCL);
WHEREAS, this Plan of Merger shall be filed with a Certificate of Ownership and Merger with
the Secretary of State of Delaware in order to consummate the merger of the Subsidiary with and
into the Parent Company; and
WHEREAS, the Parent Company and the Subsidiary have agreed to execute and file this Plan of
Merger as provided under the DGCL;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Parent Company and the Subsidiary hereby agree as follows:
1. The Merger. At the Effective Time (as such term is defined below), in accordance
with this Plan of Merger and the DGCL, the Subsidiary shall be merged (such merger being herein
referred to as the Merger) with and into the Parent Company, the separate existence of the
Subsidiary shall cease, and the Parent Company shall continue as the surviving corporation. The
Parent Company hereinafter is sometimes referred to as the Surviving Corporation.
2. Effect of the Merger. When the Merger has been effected, the Surviving Corporation
shall be named EasyLink Services International Corporation; and the Surviving Corporation shall
thereupon and thereafter 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 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 for stock
subscriptions and all other things in action or belonging to each of such 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 were of the Constituent Corporations, and the title to any real estate vested
by deed or otherwise, in any of such Constituent Corporations, shall not
revert or be in any way impaired by reason of the Merger; but all rights of creditors and all
liens upon any property of any of said Constituent Corporations shall be preserved unimpaired, and
all debts, liabilities and duties of the respective Constituent Corporations 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 by it.
-3-
3. Consummation of the Merger. The parties hereto will cause the Merger to be
consummated by filing a Certificate of Ownership and Merger with the Secretary of State of Delaware
with this Plan of Merger in such form as required by, and executed in accordance with, the relevant
provisions of the DGCL (the time of such filing being the Effective Time and the date of such
filing being the Effective Date).
4. Certificate of Incorporation, Bylaws, Directors and Officers. The Certificate of
Incorporation and Bylaws of the Surviving Corporation shall be identical with the Certificate of
Incorporation and Bylaws of the Parent Company as in effect immediately prior to the Effective Time
until thereafter amended as provided therein and under the DGCL. The members of the Board of
Directors and officers of the Parent Company immediately prior to the Effective Time shall be the
Board of Directors and officers of the Surviving Corporation immediately following the Effective
Time, and such persons shall serve in such offices for the terms provided by law or in the Bylaws
of the Surviving Corporation, or until their respective successors are elected and qualified.
5. Conversion of Securities. At the Effective Time, by virtue of the Merger and
without any action on the part of the Parent Company, the Subsidiary or the holder of any of the
shares of capital stock of the Constituent Corporations (the Shares):
(a) Each Share of each class or series of capital stock of the Parent Company issued
and outstanding immediately prior to the Effective Time shall remain unchanged as one
outstanding share of such class or series of capital stock of the Parent Company, held by
the person who was the holder of such share of capital stock of the Parent Company
immediately prior to the Merger.
(b) Each Share of capital stock of the Subsidiary issued and outstanding immediately
prior to the Effective Time shall be canceled and no consideration shall be issued in
respect thereof.
(c) Each outstanding or authorized subscription, option, warrant, call, right
(including any preemptive right), commitment, or other agreement of any character whatsoever
that obligates or may obligate the Parent Company to issue or sell any additional shares of
its capital stock or any securities convertible into or evidencing the right to subscribe
for any shares of its capital stock or securities convertible into or exchangeable for such
shares, if any, shall remain unchanged.
6. Taking of Necessary Action. Each of the Parent Company and the Subsidiary shall
use all reasonable efforts to take all such actions as may be necessary or appropriate in order to
effectuate the Merger under the DGCL or any other applicable laws. If, at any time after the
Effective Time, any further action is necessary or desirable to carry out the purposes of this Plan
of Merger and to vest the Surviving Corporation with full right, title and possession to all
assets, property, rights, privileges, powers and franchises of either of the Constituent
Corporations, the officers and directors of the Surviving Corporation are fully authorized in
the name of either the Parent Company or the Subsidiary to take all such lawful and necessary
actions.
-4-
IN WITNESS WHEREOF, the Parent Company and the Subsidiary have caused this Plan of Merger to
be executed as of the date first above written.
INTERNET COMMERCE CORPORATION |
||||
By: | /s/ Glen E. Shipley | |||
Name: | Glen E. Shipley | |||
Title: | Chief Financial Officer | |||
ENABLE CORP. |
||||
By: | /s/ Glen E. Shipley | |||
Name: | Glen E. Shipley | |||
Title: | Treasurer |
-5-
ACTION OF THE BOARD OF DIRECTORS AND SOLE STOCKHOLDER OF
ENABLE CORP.
TAKEN BY UNANIMOUS JOINT WRITTEN CONSENT
IN LIEU OF A MEETING
ENABLE CORP.
TAKEN BY UNANIMOUS JOINT WRITTEN CONSENT
IN LIEU OF A MEETING
Effective as of the 20th day of August 2007, the undersigned, being all of the
members of the Board of Directors (the Board) and the sole stockholder (the Sole Stockholder)
of Enable Corp., a Delaware corporation (the Corporation), do unanimously waive notice of the
time and place of a meeting and, pursuant to Sections 141(f) and 228 of the Delaware General
Corporation Law, unanimously consent to the adoption of, and adopt, the following resolutions,
which shall have the same force and effect as a unanimous vote taken at a duly called and held
meeting of the Board and the Sole Stockholder, and direct that this Consent be filed with the
minutes of the proceedings of the Board and the Sole Stockholder.
APPROVAL OF MERGER
WHEREAS, the Corporation is a wholly-owned subsidiary of Internet Commerce Corporation, a
Delaware corporation (ICC);
WHEREAS, after careful consideration, the Board and the Sole Stockholder believe it to be in
the best interests of the Corporation to authorize the merger of the Corporation with and into ICC,
with ICC remaining as the surviving corporation following the merger (the Merger);
WHEREAS, in connection with the Merger, the Board and the Sole Stockholder have determined it
to be advisable and in the best interests of the Corporation to file the Certificate of Ownership
and Merger in the form attached hereto as Exhibit A (the Certificate of Ownership and
Merger) with the Secretary of State of Delaware, with such changes as may be approved by the
officers of the Corporation, or any of them, with such officers execution and delivery thereof to
be conclusive evidence of such approval; and
WHEREAS, a plan of merger, in the form attached hereto as Exhibit B (the Plan of
Merger), has been prepared and submitted for consideration by the Board and the Sole Stockholder;
NOW, THEREFORE, BE IT RESOLVED, that the Board and the Sole Stockholder hereby authorize,
adopt and approve the Merger, the Certificate of Ownership and Merger and the Plan of Merger, each
with such changes as may be approved by the officers of the Corporation, or any of them, with such
officers execution and delivery thereof to be conclusive evidence of such approval;
FURTHER RESOLVED, that the Corporation shall merge with and into ICC, and ICC shall succeed to
all of the assets and properties and assume all of the liabilities and obligations of the
Corporation, and be the surviving corporation in the Merger;
FURTHER RESOLVED, that the officers of the Corporation are hereby authorized, empowered and
directed on behalf of the Corporation to execute and file the Certificate of Ownership and Merger,
Plan of Merger and this written consent with the Secretary of State of Delaware;
-6-
FURTHER RESOLVED, that by virtue of the Merger and without action on the part of the holder
thereof, each then outstanding share of capital stock of the Corporation shall be canceled and no
consideration shall be issued in respect thereof; and
FURTHER RESOLVED, that the officers of the Corporation are hereby authorized and directed to
take any and all other action including, without limitation, to file, execute, verify, acknowledge
and deliver in the name and on behalf of the Corporation, and under its corporate seal or
otherwise, any and all other documents, certificates, instruments, acts or things as they or any of
them may deem necessary or advisable fully to carry out the intent and purposes of the foregoing
resolutions, the proper exercise of such discretion being conclusively evidenced by the taking of
such actions.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
-7-
IN WITNESS WHEREOF, the undersigned directors and sole stockholder have executed this Consent
as of the date first above written.
DIRECTORS: |
||||
/s/ Thomas J. Stallings | ||||
Thomas J. Stallings | ||||
/s/ Glen E. Shipley | ||||
Glen E. Shipley | ||||
SOLE STOCKHOLDER: INTERNET COMMERCE CORPORATION |
||||
By: | /s/ Glen E. Shipley | |||
Name: | Glen E. Shipley | |||
Title: | Chief Financial Officer |
-8-