EXHIBIT 2
AGREEMENT OF MERGER
AGREEMENT OF MERGER, dated as of July 25, 1997 (the "Agreement"), between
NEXTLEVEL SYSTEMS, INC., a Delaware corporation ("NextLevel Systems"), and
NEXTLEVEL SYSTEMS OF DELAWARE, INC., a Delaware corporation ("Systems
Delaware"). Systems Delaware and NextLevel Systems are hereinafter sometimes
collectively called the "Constituent Corporations."
RECITALS
WHEREAS, General Instrument Corporation of Delaware, Inc. is the
sole stockholder of each of the Constituent Corporations;
WHEREAS, the Board of Directors, and the sole stockholder, of each
of the Constituent Corporations deems it advisable and to the welfare and
advantage of such Constituent Corporation and its respective sole stockholder
that the Constituent Corporations merge under and pursuant to Section 251 of the
General Corporation Law of the State of Delaware (the "DGCL") into a single
corporation, and that NextLevel Systems shall be the surviving corporation, and
have approved this Agreement and the merger contemplated hereby (the "Merger");
WHEREAS, the registered office of NextLevel Systems in the State of
Delaware is located at Corporation Trust Center, 0000 Xxxxxx Xxxxxx in the City
of Wilmington, County of New Castle, and the name of its registered agent at
such address is The Corporation Trust Company; and the registered office of
Systems Delaware in the State of Delaware is located at Corporation Trust
Center, 0000 Xxxxxx Xxxxxx in the City of Wilmington, County of New Castle, and
the name of its registered agent at such address is The Corporation Trust
Company.
NOW, THEREFORE, the parties to this Agreement, in consideration of
the mutual covenants, agreements and provisions hereinafter contained do hereby
prescribe the terms and conditions of said merger and mode of carrying the same
into effect as follows:
ARTICLE I
THE MERGER
SECTION 1.01 The Merger. Upon the terms hereof, and in accordance with the
relevant provisions of the DGCL, at the Effective Time (as defined in Section
1.02 hereof), Systems Delaware shall be merged with and into NextLevel Systems.
Following the Merger, NextLevel Systems shall continue as the surviving
corporation (the "Surviving Corporation") and shall continue its corporate
existence and organization under the laws of the State of Delaware, and the
separate existence of Systems Delaware shall thereupon cease.
SECTION 1.02 Effective Time. The Merger shall be consummated by filing
with the Secretary of State of the State of Delaware a certificate of merger
(the "Certificate of Merger") in accordance with the DGCL. The Merger shall
become effective at the effective time specified in the Certificate of Merger
(the time the Merger becomes effective being the "Effective Time").
SECTION 1.03 Certificate of Incorporation. At the Effective Time, the
Certificate of Incorporation of NextLevel Systems, as in effect at the Effective
Time, shall constitute and continue to be the Certificate of Incorporation of
the Surviving Corporation until further amended or changed as provided therein
or by law.
SECTION 1.04 By-laws. At the Effective Time, the By-laws of NextLevel
Systems, as in effect at the Effective Time, shall constitute and continue to be
the By-laws of the Surviving Corporation until amended or changed as provided
therein or by law.
SECTION 1.05 Directors. The directors of NextLevel Systems at the
Effective Time shall be and remain the directors of the Surviving Corporation,
and each shall hold office until their respective successors are duly elected
and qualified.
SECTION 1.05 Officers. The officers of NextLevel Systems at the Effective
Time shall be and remain the officers of the Surviving Corporation, and each
shall hold office until their respective successors are duly elected and
qualified.
SECTION 1.07 Effect of the Merger. The Surviving Corporation shall
succeed, without other transfer, to all the rights and property of Systems
Delaware and shall be subject to all the debts and liabilities thereof in the
same manner as if the Surviving Corporation had itself incurred them. All rights
of creditors and all liens put on the property of each of the Constituent
Corporations shall be preserved unimpaired.
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SECTION 1.08 Confirmatory Instruments. If any time after the Effective
Time the Surviving Corporation shall consider or be advised that any instruments
of further assurance are desirable in order to evidence the vesting in it of the
title of either of the Constituent Corporations to any of the property rights of
the Constituent Corporations, the appropriate officers or directors of either of
the Constituent Corporations, are hereby authorized to execute, acknowledge and
deliver all such instruments of further assurance and to do all other acts or
things, either in the name of Systems Delaware or in the name of NextLevel
Systems, as may be requisite or desirable to carry out the provisions of this
Agreement.
ARTICLE II
MANNER OF CONVERTING SHARES
SECTION 2.01 Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of Systems Delaware or NextLevel
Systems, each share of capital stock of Systems Delaware shall be converted into
14,731,462 shares of fully paid and non-assessable common stock, par value $.01
per share, of NextLevel Systems. The shares of capital stock of NextLevel
Systems outstanding immediately prior to the Effective Time shall continue as
shares of capital stock of the Surviving Corporation.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 Termination of Merger. Anything herein or elsewhere to the
contrary notwithstanding, this Agreement may be terminated and abandoned by the
Board of Directors of NextLevel Systems at any time prior to the date of filing
the Certificate of Merger with the Delaware Secretary of State. This Agreement
may be amended by the Boards of Directors of the Constituent Corporations at any
time prior to the date of filing the Certificate of Merger with the Delaware
Secretary of State.
SECTION 3.02 Execution in 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.
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IN WITNESS WHEREOF, each party to this Agreement has caused it to be
executed by an authorized officer, and attested by the Assistant Secretary,
thereof as the respective act, deed and agreement of each of said corporations,
on this 25th day of July, 1997.
NEXTLEVEL SYSTEMS OF DELAWARE,
INC.
By: /s/ Xxxxx A Zar
-----------------------------------------
Name: Xxxxx X. Zar
Title: Vice President
ATTEST:
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
NEXTLEVEL SYSTEMS, INC.
By: /s/ Xxxxx A Zar
-----------------------------------------
Name: Xxxxx X. Zar
Title: Vice President and General Counsel
ATTEST:
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
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