EXHIBIT 1.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is dated as of
December 13, 1999, and is entered into by and between SkyLynx Communications,
Inc., a Colorado corporation ("SCI-Colorado") and SkyLynx Communications,
Inc., a Delaware corporation ("SCI-Delaware"). SCI-Colorado and SCI-Delaware
are hereinafter sometimes collectively referred to as the "Constituent
Corporations".
RECITALS
A. SCI-Colorado desires to merge with and into SCI-Delaware and SCI-
Delaware desires to merge with SCI-Colorado, all upon the terms and subject to
the conditions of this Merger Agreement.
B. SCI-Colorado was incorporated on September 23, 1996 and is a
corporation duly organized and existing under the laws of the State of
Colorado. Its authorized capital stock consists of 50,000,000 shares of
Preferred Stock, par value $0.01 per share (the "SCI-Colorado Preferred
Stock"), and 150,000,000 shares of Common Stock, par value $0.001 per share
(the "SCI-Colorado Common Stock"), of which 379,941 shares of SCI-Colorado
Series A Convertible Preferred Stock, 600 shares of SCI-Colorado Series B
Convertible Preferred Stock, 696,419 shares of SCI-Colorado Series C
Convertible Preferred Stock, 8,899 shares of SCI-Colorado Series D Convertible
Preferred Stock, 2,787 shares of SCI-Colorado Series E Convertible Preferred
Stock and 12,651,687 shares of Common Stock were issued and outstanding on
December 10, 1999.
C. SCI-Delaware was incorporated on February 10, 1999 and is a
corporation duly organized and existing under the laws of the State of
Delaware. Its authorized capital stock consists of 50,000,000 shares of
Preferred Stock, par value $0.001 per share (the "SCI-Delaware Preferred
Stock), and 150,000,000 shares of Common Stock, par value $0.001 per share
(the "SCI-Delaware Common Stock"), of which no shares of SCI-Delaware
Preferred Stock and 10,000 shares of SCI-Delaware Common Stock were issued and
outstanding on December 10, 1999. All outstanding shares of SCI-Delaware
Common Stock shares are held by and in the name of SCI-Colorado.
D. The Board of Directors of SCI-Colorado has determined that, for the
purpose of effecting the reincorporation of SCI-Colorado in the State of
Delaware, it is advisable and in the bests interests of SCI-Colorado and its
shareholders that SCI-Colorado merge with and into SCI-Delaware upon the terms
and conditions herein provided.
E. The Board of Directors of SCI-Colorado has adopted resolutions
approving this Merger Agreement and the transactions contemplated hereby and
has recommended to the existing shareholders of SCI-Colorado (individually, a
"Shareholder", and collectively, the "Shareholders") to approve this Merger
Agreement and the transactions contemplated hereby. The Shareholders of SCI-
Colorado approved the Merger Agreement at the annual meeting of Shareholders
held on August 23, 1999.
F. The Board of Directors of SCI-Delaware has adopted resolutions
approving this Merger Agreement and the transactions contemplated hereby.
G. It is intended, for federal tax purposes, that the merger
accomplished by the Merger Agreement will qualify as a tax-free reorganization
within the meaning of Section 332 of the Internal Revenue Code.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, agreements and conditions contained
herein, the parties hereto agree as follows:
ARTICLE I
MERGER
Section 1.1. THE MERGER. In accordance with the provisions of this
Merger Agreement, the Colorado Business Corporation Act (the "CBCA") and the
Delaware General Corporation Law (the "DGCL"), SCI-Colorado shall be merged
with and into SCI-Delaware (the "Merger"), the separate existence of SCI-
Colorado shall cease and SCI-Delaware shall be the surviving corporation
(hereinafter sometimes called the "Surviving Corporation") and shall continue
its corporate existence under the laws of the State of Delaware. The name of
the Surviving Corporation shall be "SkyLynx Communications, Inc."
Section 1.2. FILING AND EFFECTIVENESS. The Merger shall become
effective (the "Effective Date") when the following actions have been
completed:
(a) This Merger Agreement and the Merger shall have been adopted
and approved by the directors of SCI-Colorado and SCI-Delaware in accordance
with the requirements of the CBCA and the DGCL, respectively;
(b) An executed Certificate of Ownership or an executed counterpart
of this Merger Agreement meeting the requirements of the DGCL shall have been
filed with the Secretary of State of the State of Delaware; and
(c) An executed Articles of Merger or an executed counterpart of
this Merger Agreement meeting the requirements of the CBCA shall have been
filed with the Secretary of State of the State of Colorado.
Section 1.3. EFFECT OF THE MERGER. Upon the Effective Date, the
separate existence of SCI-Colorado shall cease and SCI-Delaware, as the
Surviving Corporation: (i) shall continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the Effective
Date; (ii) shall be subject to all actions previously taken by its and SCI-
Colorado's Boards of Directors; (iii) shall succeed, without other transfer,
to all of the assets, rights, powers and property of SCI-Colorado in the
manner more fully set forth in Section 259 of the DGCL; (iv) shall continue to
be subject to all of the debts, liabilities and obligations of SCI-Delaware as
constituted immediately prior to the Effective Date; and (v) shall succeed,
without other transfer, to all of the debts, liabilities and obligations of
SCI-Colorado in the same manner as if SCI-Delaware had itself incurred them,
all as more fully provided under the applicable provisions of the DGCL and the
CBCA.
ARTICLE II
CHARTER DOCUMENTS; DIRECTORS AND OFFICERS
Section 2.1. CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate
of Incorporation of SCI-Delaware, as amended and restated in the form attached
hereto as Exhibit A (the "Certificate"), and the Bylaws of SCI-Delaware as in
effect immediately prior to the Effective Date shall continue in full force
and effect as the Certificate of Incorporation and Bylaws of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law.
Section 2.2. DIRECTORS AND OFFICERS. The directors and officers of
SCI-Colorado immediately prior to the Effective Date shall be the directors
and officers of the Surviving Corporation until their respective successors
are duly elected or appointed and qualified or until as otherwise provided by
law, or by the Certificate and Bylaws of the Surviving Corporation.
ARTICLE III
MANNER OF CONVERSION OF STOCK
Section 3.1. SCI-COLORADO CAPITAL STOCK. Upon the Effective Date, each
share of SCI-Colorado Common Stock issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be
converted automatically into one (1) fully paid and nonassessable, issued and
outstanding share of Common Stock, par value $0.001 per share, of the
Surviving Corporation. Upon the Effective Date, each share of SCI-Colorado
Series A Preferred Stock, SCI-Colorado Series B Preferred Stock, SCI-Colorado
Series C Preferred Stock, SCI-Colorado Series D Preferred Stock and SCI-
Colorado Series E Preferred Stock issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be
converted automatically into one (1) fully paid and nonassessable, issued and
outstanding share of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock, par value $0.01 per share, of the Surviving Corporation, as the case
may be, with the identical rights, privileges, powers, qualifications,
limitations, restrictions, duties, and obligations that existed prior to the
Merger, as more fully described in the Certificate.
Section 3.2. SCI-COLORADO OPTIONS AND STOCK PURCHASE RIGHTS.
(a) Upon the Effective Date, the Surviving Corporation shall assume
and continue the stock options and all other employee benefit plans of SCI-
Colorado and all of such options and plans shall become the lawful obligations
of the Surviving Corporation and shall be implemented and administered in the
same manner and without interruption until the same are amended or otherwise
lawfully altered or terminated. Each outstanding and unexercised option or
other right to purchase SCI-Colorado Preferred Stock or SCI-Colorado Common
Stock shall become an option or right to purchase the Surviving Corporation's
Preferred Stock or Common Stock, as the case may be, on the basis of one share
of the Surviving Corporation's Preferred Stock or Common Stock for each share
of SCI-Colorado Preferred Stock or SCI-Colorado Common Stock, as the case may
be, issuable pursuant to any such stock option or stock purchase right, on the
same terms and conditions and at an exercise price per share equal to the
exercise price applicable to any such SCI-Colorado stock option or stock
purchase right.
(b) A number of shares of the Surviving Corporation's Common Stock
shall be reserved for issuance upon the conversion of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock of the Surviving Corporation, and the
exercise of options and stock purchase rights, equal to the number of shares
of SCI-Colorado Common Stock so reserved for issuance upon conversion of the
SCI-Colorado Series A Preferred Stock, SCI-Colorado Series B Preferred Stock,
SCI-Colorado Series C Preferred Stock, SCI-Colorado Series D Preferred Stock
and SCI-Colorado Series E Preferred Stock immediately prior to the Merger.
Section 3.3 SCI-DELAWARE COMMON STOCK. Upon the Effective Date, each
share of SCI-Delaware Common Stock issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by SCI-Delaware,
the holder of such shares or any other person, be canceled and returned to the
status of authorized but unissued shares.
Section 3.4. EXCHANGE OF CERTIFICATES. After the Effective Date, each
holder of an outstanding certificate representing shares of SCI-Colorado
Common Stock, SCI-Colorado Series A Preferred Stock, SCI-Colorado Series B
Preferred Stock, SCI-Colorado Series C Preferred Stock, SCI-Colorado Series D
Preferred Stock or SCI-Colorado Series E Preferred Stock may, at such
stockholder's option, surrender the same for cancellation to the Surviving
Corporation or its transfer agent, and each such holder shall be entitled to
receive in exchange therefor a certificate or certificates representing the
number of shares of the Surviving Corporation's Common Stock, Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or Series E Preferred Stock, as the case may be, into which
the surrendered shares were converted as herein provided. Unless and until so
surrendered, each outstanding certificate theretofore representing shares of
SCI-Colorado Common Stock, SCI-Colorado Series A Preferred Stock, SCI-Colorado
Series B Preferred Stock, SCI-Colorado Series C Preferred Stock, SCI-Colorado
Series D Preferred Stock or SCI-Colorado Series E Preferred Stock shall be
deemed for all purposes to represent the number of shares of the Surviving
Corporation's Common Stock, Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock or Series E
Preferred Stock, as the case may be, into which such shares were converted in
the Merger.
The registered owner on the books and records of SCI-Colorado of any
shares of capital stock represented by such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or otherwise
accounted for to the Surviving Corporation or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of capital stock
of the Surviving Corporation represented by such outstanding certificate as
provided above.
Each certificate representing capital stock of the Surviving Corporation
so issued in the Merger shall bear the same legends, if any, with respect to
the restrictions on transferability as the certificates of SCI-Colorado so
converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws, or other such additional legends as agreed upon by the holder and the
Surviving Corporation.
If any certificate for shares of capital stock of the Surviving
Corporation 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
issuance thereof that the certificate so surrendered shall be properly
endorsed and otherwise in proper form for transfer, that such transfer
otherwise be proper and comply with applicable securities laws and that the
person requesting such transfer pay to the Surviving Corporation or its
transfer agent any transfer or other taxes payable by reason of issuance of
such new certificates in a name other than that of the registered holder of
the certificate surrendered or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not payable.
ARTICLE IV
GENERAL
Section 4.1. COVENANTS OF SCI-DELAWARE. SCI-Delaware covenants and
agrees that it will, on or before the Effective Date:
(a) qualify to do business as a foreign corporation in the State of
Colorado and in connection therewith appoint an agent for the service of
process as required under the provisions of Section 0-000-000 of the CBCA; and
(b) take such other actions as may be required by the CBCA.
Section 4.2. FURTHER ASSURANCES. From time to time, as and when
required by SCI-Delaware or by its successors and assigns, there shall be
executed and delivered on behalf of SCI-Colorado such deeds and other
instruments, and there shall be taken or caused to be taken by SCI-Colorado
and SCI-Delaware such further and other actions, as shall be appropriate or
necessary in order to vest or perfect in the Surviving Corporation title to
and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of SCI-Colorado, and otherwise to
carry out the purposes and intent of this Merger Agreement, and the officers
and directors of the Surviving Corporation are fully authorized in the name
and on behalf of SCI-Colorado or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
Section 4.3. ABANDONMENT. At any time before the Effective Date, this
Merger Agreement may be terminated and the Merger contemplated hereby may be
abandoned by the Board of Directors of either SCI-Colorado or of SCI-Delaware,
or of both, notwithstanding approval of this Merger Agreement by the
shareholders of SCI-Colorado, by the sole stockholder of SCI-Delaware, or by
both.
Section 4.4. AMENDMENT. The Board of Directors of the Constituent
Corporations may amend this Merger Agreement at any time prior to the filing
of this Merger Agreement (or certificate in lieu thereof) with the Secretaries
of State of the States of Delaware and Colorado, provided that an amendment
made subsequent to the adoption of this Merger Agreement by the shareholders
of either Constituent Corporation shall not: (a) alter or change the amount or
kind of shares, securities, cash, property and/or rights to be received in
exchange for or on conversion of all or any of the shares of any class or
series thereof of such Constituent Corporation; (b) alter or change any term
of the Certificate of the Surviving Corporation from the form attached hereto
as Exhibit A; and (c) alter or change any of the terms or conditions of this
Merger Agreement if such alteration or change would adversely affect the
holders of any class or series of capital stock of any Constituent
Corporation.
Section 4.5. GOVERNING LAW. Except as required by Colorado law, this
Merger Agreement shall be governed by the laws of the State of Delaware
regardless of the laws that might otherwise govern under applicable Delaware
principles of conflicts of law.
Section 4.6. COUNTERPARTS. This Merger 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, this Merger Agreement having first been approved by
the resolutions of the Board of Directors of SkyLynx Communications, Inc., a
Delaware corporation, and SkyLynx Communications, Inc., a Colorado
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
SKYLYNX COMMUNICATIONS, INC.,
a Delaware corporation
By ___________________________
Name ___________________________
Title __________________________
ATTEST:
By ___________________________
Name ___________________________
Title ___________________________
SKYLYNX COMMUNICATIONS, INC.,
a Colorado corporation
By ____________________________
Name ___________________________
Title ___________________________
ATTEST:
By ___________________________
Name ___________________________
Title _________________________
EXHIBIT A
CERTIFICATE OF INCORPORATION
