EXHIBIT C
AGREEMENT AND PLAN OF MERGER
DATED AS XX XXXXX 00, 0000
XXXXX
XXXXXX COMMUNICATIONS GROUP, INC.,
DE MERGER SUB, INC.
AND
SYMPOSIUM OMEGA, INC.
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TABLE OF CONTENTS
ARTICLE I. THE MERGER 1
1.1
The Merger 1
1.2 Closing 1
1.3 Effective Time 1
1.4 Effects of the Merger 2
1.5 Certificate of Incorporation 2
1.6 Bylaws 2
1.7 Officers and Directors of Surviving Corporation 2
1.8 Tax Consequences 2
ARTICLE II. EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS; EXCHANGE OF CERTIFICATES 2
2.1
Effect on Capital Stock 2
ARTICLE III. REPRESENTATIONS AND WARRANTIES
3
3.1
Representations and Warranties of the Company 3
3.2 Representations and Warranties of Parent 4
ARTICLE IV. COVENANTS RELATING TO CONDUCT OF BUSINESS
8
4.1
Covenants of the Company 8
4.2 Covenants of Parent and Merger Sub 8
ARTICLE V. ADDITIONAL AGREEMENTS
9
5.1
Claims for Indemnification 9
5.2 Exculpation 9
5.3 Defense of Third-party Claims 9
5.4 Survival 10
5.5 Tax and Accounting Treatment 10
5.6 Further Assurances 10
ARTICLE VI. CONDITIONS PRECEDENT
10
6.1
Conditions to the Obligations of Parent and Merger Sub to Consummate the Merger 10
6.2 Conditions to the Obligations of the Company 11
ARTICLE VII. TERMINATION and Liquidated damages
12
7.1
Termination 12
7.2 Effect of Termination 12
7.3 Liquidated Damages 12
i
ARTICLE VIII. GENERAL PROVISIONS
12
8.1
Survival of Representations and Warranties; No Other Representations and Warranties 12
8.2 Amendment 13
8.3 Extension; Waiver 13
8.4 Notices 13
8.5 Interpretation 13
8.6 Counterparts 14
8.7 Entire Agreement; Third Party Beneficiaries 14
8.8 Governing Law 14
8.9 Severability 14
8.10 Assignment 14
8.11 Enforcement 14
8.12 Definitions 15
ii
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of March 30, 2004 (this
"Agreement"), by and among COGENT COMMUNICATIONS GROUP, INC., a Delaware
corporation ("Parent"), DE MERGER SUB, INC., a Delaware corporation and a
wholly-owned Subsidiary of Parent ("Merger Sub"), and SYMPOSIUM OMEGA, INC., a
Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Parent, Merger Sub and
the Company have each determined that the Merger (as defined below) is in the
best interests of their respective stockholders and have approved the Merger
upon the terms and subject to the conditions set forth in this Agreement,
whereby each issued and outstanding share of Common Stock, par value $.001 per
share, of the Company ("Company Common Stock"), will be converted into the right
to receive one share of Series J Participating Convertible Preferred Stock, par
value $.001 per share, of Parent (the "Series J Preferred Stock");
WHEREAS, in order to effectuate the foregoing, Merger Sub, upon the
terms and subject to the conditions of this Agreement and in accordance with the
Delaware General Corporation Law (the "DGCL"), will merge with and into the
Company (the "Merger");
WHEREAS, the Company intends to acquire substantially all of the Carrier
One International assets from GLH GmbH used in its business (the "Acquisition");
WHEREAS, Parent, Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger; and
WHEREAS, for United States Federal income tax purposes it is intended
that the Merger qualify as a reorganization within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I.
THE MERGER
1.1 THE MERGER. Upon the terms and subject to the conditions set forth
in this Agreement, and in accordance with Section 251 of the DGCL, Merger Sub
shall be merged with and into the Company at the Effective Time (as defined
below). Following the Merger, the separate corporate existence of Merger Sub
shall cease and the Company shall continue as the surviving corporation (the
"Surviving Corporation") in accordance with the DGCL.
1.2 CLOSING. The closing of the Merger (the "Closing") will take place
on the date all the conditions set forth in Article IV of this Agreement have
been satisfied or waived, or if not, as soon as practicable after satisfaction
or waiver (as permitted by this Agreement and applicable law) of the conditions
(excluding conditions that, by their terms, cannot be satisfied until the
Closing Date) set forth in Article VI (the "Closing Date"), unless another time
or date is agreed to in writing by the parties hereto. The Closing shall be held
at the offices of Xxxxxx & Xxxxxxx LLP, 000 00xx Xxxxxx X.X., Xxxxxxxxxx, X.X.,
unless another place is agreed to in writing by the parties hereto.
1.3 EFFECTIVE TIME. Upon the Closing, the parties shall file with the
Secretary of State of the State of Delaware a certificate of merger or other
appropriate documents (in any such case, the
1
"Certificate of Merger") executed in accordance with the relevant provisions of
the DGCL and shall make all other filings, recordings or publications required
under the DGCL in connection with the Merger. The Merger shall become effective
at such time as the Certificate of Merger is duly filed with the Delaware
Secretary of State and the applicable Series J Preferred Stock shall have been
issued to the holders of the Company Common Stock, or at such other time as the
parties may agree and specify in the Certificate of Merger (the time the Merger
becomes effective being the "Effective Time").
1.4 EFFECTS OF THE MERGER. At and after the Effective Time, the Merger
will have the effects set forth in Section 259 of the DGCL.
1.5 CERTIFICATE OF INCORPORATION. The certificate of incorporation of
Merger Sub as in effect immediately prior to the Effective Time shall be the
certificate of incorporation of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law, provided that such
certificate of incorporation shall be amended to reflect "Symposium Omega, Inc."
as the name of the Surviving Corporation.
1.6 BYLAWS. The bylaws of Merger Sub as in effect at the Effective Time
shall be the bylaws of the Surviving Corporation until thereafter changed or
amended as provided therein or by applicable law.
1.7 OFFICERS AND DIRECTORS OF SURVIVING CORPORATION. The officers and
directors of Merger Sub shall be the officers and directors of the Surviving
Corporation until the earlier of their resignation or removal or otherwise
ceasing to be an officer or director or until their respective successors are
duly elected and qualified, as the case may be.
1.8 TAX CONSEQUENCES. It is intended by the parties hereto that the
Merger qualify as a reorganization described in Section 368(a) of the Code. The
parties hereto adopt this Agreement as a "plan of reorganization" within the
meaning of Sections 1.368-2(g) and 1.368-3 of the United States Income Tax
Regulations.
ARTICLE II.
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS; EXCHANGE OF CERTIFICATES
2.1 EFFECT ON CAPITAL STOCK. As of the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any shares of Company
Common Stock or any shares of capital stock of Merger Sub:
(a) Capital Stock of Merger Sub. Each issued and outstanding share of
capital stock of Merger Sub shall be converted into and become one fully
paid and nonassessable share of common stock, par value $0.001 per share,
of the Surviving Corporation.
(b) Cancellation of Treasury Stock and Parent-Owned Stock. Each share
of Company Common Stock that is owned by the Company or by a wholly owned
subsidiary of the Company and each share of Company Common Stock that is
owned by Parent, Merger Sub or any other wholly owned subsidiary of Parent
shall automatically be canceled and retired and shall cease to exist, and
no Series J Preferred Stock or other consideration shall be delivered in
exchange therefor.
(c) Conversion of Company Common Stock. Each issued and outstanding
share of Company Common Stock (other than shares to be canceled in
accordance with Section 2.1(b)) shall automatically be converted into the
right to receive one fully paid and nonassessable share of Series J
Preferred Stock. As of the Effective Time, all such shares of Company
Common Stock shall no longer be outstanding and shall automatically be
canceled and retired and shall cease to exist, and each holder of a
certificate representing any such shares of Company Common Stock shall
cease to have any rights with respect thereto, except the right to receive
upon the surrender of such certificates, certificates representing the
shares of Series J Preferred Stock.
2
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Parent and Merger Sub as follows:
(a) Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted.
(b) Authorization. The Company has all requisite corporate power and
corporate authority to enter into this Agreement and to consummate the
Merger and the other transactions contemplated hereby. The execution,
delivery and performance by the Company of this Agreement and the
consummation by the Company of the Merger have been duly authorized by all
necessary corporate action on the part of the Company. This Agreement has
been duly executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to
or affecting creditors generally, or by general equity principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(c) Capitalization. The authorized capital stock of the Company
consists, or will consist, immediately prior to the Closing, of 3,891
shares of Common Stock, of which 3,891 shares are issued and outstanding.
All of the issued and outstanding shares of the Company's Common Stock were
validly issued and are fully paid and nonassessable.
(d) No subscription, warrant, option, convertible security or other
right (contingent or otherwise) to purchase or acquire any shares of
capital stock of the Company is authorized or outstanding, (ii) the Company
has no obligation (contingent or otherwise) to issue any subscription,
warrant, option, convertible security or other such right or to issue or
distribute to holders of any shares of its capital stock any evidences of
indebtedness or assets of the Company or any of its subsidiaries, and (iii)
the Company has no obligation (contingent or otherwise) to purchase, redeem
or otherwise acquire any shares of its capital stock or any interest
therein or to pay any dividend or make any other distribution in respect
thereof.
(e) There are no agreements, written or oral, between the Company and
any holder of its capital stock, or among any holders of its capital stock,
relating to the acquisition (including without limitation rights of first
refusal or preemptive rights), disposition, registration under the
Securities Act of 1933, as amended (the "Securities Act"), or voting of the
capital stock of the Company.
(f) Subsidiaries. At the Closing, the Company will be the holder of
100% of the authorized equity capital of Cogent Communications Deutschland
GmbH ("Company Sub"). Except for its interest in Company Sub, the Company
does not own or control, directly or indirectly, any interest in any other
corporation, association, or other business entity.
(g) Corporate Documents. The Certificate and Bylaws of the Company are
in the form provided to counsel for the stockholders of the Company.
3
3.2 REPRESENTATIONS AND WARRANTIES OF PARENT. Except as set forth in the
Parent Disclosure Schedule delivered by Parent to the Company at or prior to the
execution of this Agreement (the "Parent Disclosure Schedule"), Parent
represents and warrants to the Company as follows:
(a) Organization, Good Standing and Qualification. Parent and Merger
Sub are corporations duly organized, validly existing and in good standing
under the laws of Delaware and each has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted.
(b) Authorization. Each of Parent and Merger Sub has all requisite
corporate power and corporate authority to enter into this Agreement and to
consummate the Merger and the other transactions contemplated hereby. The
execution, delivery and performance by each of Parent and Merger Sub of
this Agreement and the consummation by Parent and Merger Sub of the Merger
and the other transactions contemplated hereby, including, without
limitation, the filing of the Certificate of Designation, as defined
herein, by Parent and the issuance of the Series J Preferred Stock have
been, and immediately before the date that the Series J Preferred Stock
become convertible the reservation for issuance of all Conversion Shares
(as defined below) issuable upon conversion of the Series J Preferred Stock
will have been, duly authorized by all necessary corporate action on the
part of Parent and Merger Sub and no further consent or authorization is
required by Parent or Merger Sub or their respective boards of directors or
stockholders. This Agreement has been duly executed and delivered by Parent
and Merger Sub and constitutes a valid and binding agreement of Parent and
Merger Sub, enforceable against each of them in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors generally, or by general equity principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) Parent Capitalization.
(i) Immediately prior to the Closing and without giving effect to
the Merger the Parent will have a total authorized capitalization
consisting of:
(A) 395,000,000 shares of common stock, par value $.001 (the
"Common Stock") of which (a) 14,300,575 shares are issued and
outstanding, (b) 1,490,000 shares remain reserved for issuance
pursuant to stock purchase, stock grant or stock option
arrangements for employees, directors or consultants of the
Parent, (c) 1,791,051 shares remain reserved for issuance to
holders of shares of the common stock of Allied Riser, (d)
155,809 shares remain reserved for issuance pursuant to warrants
granted in connection with certain agreements between Allied
Riser and certain landlords relating to building access rights,
(e) 68,199,901 shares are reserved for issuance upon conversion
of the Series F Participating Convertible Preferred Stock of
Parent (the "Series F Preferred Stock"), (f) 254,947,501 shares
are reserved for issuance upon conversion of the Series G
Participating Convertible Preferred Stock of Parent (the "Series
G Preferred Stock"), and (g) 41,539,253 shares are reserved for
issuance upon conversion of the Series H Participating
Convertible Preferred Stock of Parent (the "Series H Preferred
Stock").
(B) 120,000 shares of the Parent's preferred stock, $.001
par value per share (the "Preferred Stock"), of which (a) 13,999
shares are authorized but unissued Preferred Stock, (b) 11,000
shares are designated as Series F Preferred Stock, all of which
are issued and outstanding, (c) 41,030 shares are designated as
Series G Preferred Stock, all of which are issued and
outstanding, (d) 54,001 shares are designated as Series H
Preferred Stock, of which 53,721 shares are issued and
outstanding, (e) 3,000 shares are designated as Series I
Participating Convertible Preferred Stock (the "Series I
Preferred Stock"), of which 2,575 shares are issued and
outstanding, and (f) 3,891 shares are designated as Series J
Preferred Stock, of which 0 shares are issued and outstanding.
4
(ii) All the outstanding shares of capital stock of the Parent
have been duly authorized, and are validly issued, fully paid and
non-assessable and were issued in compliance with all applicable state
and federal laws concerning the issuance of securities. The Series J
Preferred Stock, when issued and delivered in accordance with the
terms hereof, will be (i) duly authorized, validly issued, fully-paid
and non-assessable, (ii) free from all taxes, liens and charges with
respect to the issuance thereof and (iii) entitled to the rights and
preferences set forth in the Certificate of Designation. Such shares
of Common Stock issuable upon conversion of the Series J Preferred
Stock, when issued and delivered upon conversion of any of the Series
J Preferred Stock (the "Conversion Shares"), will be validly issued,
fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof, with the holders being
entitled to all rights accorded to a holder of Common Stock.
Immediately before the date that the Series J Preferred Stock become
convertible, there shall have been reserved, free of preemptive rights
and other preferential rights, a sufficient number of authorized but
unissued shares of Common Stock to satisfy the conversion rights of
the holders of the Series J Preferred Stock.
(iii) No options, warrants, subscriptions, convertible
securities, phantom stock, stock appreciation rights or other rights
(contingent or otherwise) of any nature to acquire from the Parent
shares of capital stock or other securities are authorized, issued or
outstanding, nor is the Parent obligated in any other manner to issue
shares of its capital stock or other securities except as contemplated
by this Agreement. There are no restrictions on the transfer of shares
of capital stock of the Parent other than those imposed by relevant
federal and state securities laws and as otherwise contemplated by
this Agreement, the Parent's Second Amended and Restated Stockholders
Agreement (the "Existing Stockholders Agreement") and the Parent's
Third Amended and Restated Registration Rights Agreement (the
"Existing Registration Rights Agreement").
(d) No Conflicts.
(i) The execution, delivery and performance of this Agreement by
Parent and the Merger Sub, the performance by Parent and Merger Sub of
their respective obligations hereunder and the consummation by Parent
and Merger Sub of the transactions contemplated hereby will not:
(A) result in a violation of the certificate of
incorporation or bylaws of either Parent or Merger Sub;
(B) conflict with, or constitute a default (or an event
which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or incremental,
additional or varied rights under, any material agreement,
indenture or instrument (including, without limitation, any stock
option, employee stock purchase or similar plan or any employment
or similar agreement) to which Parent, Merger Sub or any
Subsidiary of Parent is a party (including, without limitation,
triggering the application of any change of control or similar
provision (whether "single trigger" or "double trigger"), any
right of redemption or conversion or any anti-dilution provision
or similar rights);
(C) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever
upon any of the material properties or assets of Parent, Merger
Sub or any Subsidiary of Parent other than a lien on the stock of
Merger Sub pursuant to Parent's secured credit facility with
Cisco Credit Corporation; or
(D) result in a violation of any law, rule, regulation,
order, judgment or decree (including federal and state securities
laws and regulations and the rules and regulations of the
American Stock Exchange) applicable to Parent, Merger Sub or any
Subsidiary of Parent or by which any property or asset of Parent,
Merger Sub or any Subsidiary of Parent is bound or affected.
5
(ii) Except for the filing of the Certificate of Designation with
the Secretary of State of the State of Delaware, neither Parent nor
Merger Sub is required to obtain any consent, authorization or order
of, or make any filing or registration with, any foreign, federal,
state or local government or governmental agency, department, or body
in order for it to execute, deliver or perform any of its obligations
under or contemplated by this Agreement in accordance with the terms
hereof.
(e) Legal Proceedings. Except as disclosed in the SEC Filings (as
defined below), there is no material legal or governmental proceeding
pending or, to the knowledge of Parent, threatened or contemplated to which
Parent is or may be a party or of which the business or property of Parent
is or may be subject.
(f) No Violations. Except as disclosed in the SEC Filings, Parent is
not in violation of its certificate of incorporation or its by-laws, in
violation of any law, administrative regulation, ordinance or order of any
court or governmental agency, arbitration panel or authority applicable to
Parent, which violation, individually or in the aggregate, would have a
material adverse effect on the business or financial condition of Parent,
or in default in any material respect in the performance of any obligation,
agreement or condition contained in any material bond, debenture, note or
any other evidence of indebtedness in any indenture, mortgage, deed of
trust or any other agreement or instrument to which Parent is a party or by
which Parent is bound or by which the properties of Parent are bound or
affected.
(g) Governmental Permits, Etc. Except as disclosed in the SEC Filings,
Parent has all necessary franchises, licenses, certificates and other
authorizations from any foreign, federal, state or local government or
governmental agency, department, or body that are currently necessary for
the operation of the business of Parent as currently conducted, the absence
of which would have a material adverse effect on the business or operations
of Parent.
(h) Financial Statements. Except as disclosed in the SEC Filings, the
financial statements of Parent and the related notes, provided to the
Company by Parent (the "Financial Statements"), present fairly the
financial position of Parent as of the dates indicated therein and its
results of operations and cash flows for the periods therein specified. The
Financial Statements (including the related notes) have been prepared in
accordance with United States generally accepted accounting principles
applied on a consistent basis throughout the periods therein specified. The
Financial Statements are identical in all material respects to the
financial statements that will be contained in Parent's Annual Report on
Form 10-K for the fiscal year ended December 31, 2003.
(i) Additional Information.
(i) Parent has filed in a timely manner all documents that Parent
was required to file (i) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and (ii) under the Securities Act, as of
the date hereof. The following documents (including all exhibits
included therein and financial statements and schedules thereto and
documents incorporated by reference) (collectively, the "SEC Filings")
complied in all material respects with the requirements of the
Exchange Act as of their respective filing dates, and the information
contained therein was true and correct in all material respects as of
the date of such documents, and each of the following documents as of
the date thereof did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading:
6
(A) Parent's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 2003; and
(B) all other documents, if any, filed by Parent with the
Securities and Exchange Commission (the "SEC") since the filing
of the Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2003 pursuant to the reporting requirements of the
Exchange Act.
(ii) As of their respective dates, the financial statements of
Parent included in the SEC Filings complied as to form (and will
comply as to form) in all material respects with U.S. generally
accepted accounting principles ("GAAP") and the published rules and
regulations of the SEC with respect thereto. Such financial statements
have been prepared in accordance with GAAP, consistently applied,
during the periods involved (except in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be
condensed or summary statements or as otherwise, in each case, may be
permitted by the SEC on Form 10-Q under the Exchange Act) and fairly
present in all material respects the consolidated financial position
of Parent as of the dates thereof and the consolidated results of its
operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments).
Ernst & Young LLP, which has examined certain of such financial
statements, is an independent certified public accounting firm within
the meaning of the Securities Act.
(iii) Since September 30, 2003, except as specified in the SEC
Filings, Parent has not incurred or suffered any liability or
obligation, matured or unmatured, contingent or otherwise, except in
the ordinary course of business and except any such liability or
obligation that has not had and could not reasonably be expected to
have, individually or in the aggregate, a material adverse effect on
the business or financial condition of Parent. Without limiting the
foregoing, except as specified in the SEC Filings, Parent has no
material liabilities or obligations that would reasonably be expected
to be disclosed in order to comply with Section 13(j) of the Exchange
Act or any proposed rules promulgated by the SEC thereunder, including
the rules regarding contractual commitments and contingent liabilities
and commitments proposed in SEC Release No. 33-8144; 34-46767.
(j) No General Solicitation. Neither Parent, nor any of its
affiliates, nor any person acting on its or their behalf, has engaged in
any form of general solicitation or general advertising (within the meaning
of Regulation D under the Securities Act) in connection with the offer or
sale of the Series J Preferred Stock.
(k) No Integrated Offering. Neither Parent, nor any of its affiliates,
nor any person acting on its or their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any
security, under circumstances that would require registration of the Series
J Preferred Stock under the Securities Act or cause this offering of the
Series J Preferred Stock to be integrated with prior offerings by Parent
for purposes of the Securities Act or any applicable stockholder approval
provisions, including, without limitation, under the rules and regulations
of the American Stock Exchange, nor will Parent or any of its subsidiaries
take any action or steps that would require registration of the Series J
Preferred Stock under the Securities Act or cause the offering of the
Series J Preferred Stock to be integrated with other offerings.
(l) Internal Accounting Controls. Parent maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset and liability
accountability, (iii) access to assets or incurrence of liability is
permitted only in accordance with management's general or specific
authorization and (iv) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
7
(m) Private Placement. The offer, sale and issuance of the Series J
Preferred Stock as contemplated by this Agreement is exempt from the
registration requirements of the Securities Act and all applicable state
securities laws.
(o) Merger Sub Business Activities. Merger Sub is not a party to any
material agreements and has not conducted any activities other than in
connection with the organization of Merger Sub, the negotiation and
execution of this Agreement and the consummation of the Merger. Merger Sub
has no Subsidiaries.
(p) Corporate Documents. The Certificate and Bylaws of the Parent are
in the form provided to counsel for the stockholders of the Company.
(q) Tax Treatment. The Merger will qualify as a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code").
ARTICLE IV.
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1 COVENANTS OF THE COMPANY. The Company agrees and covenants to use
its best efforts to cause the consummation of the Merger and further agrees and
covenants not to take any action that is inconsistent with its obligations under
this Agreement in any material respect that could reasonably be expected to
hinder or delay the consummation of the Merger.
4.2 COVENANTS OF PARENT AND MERGER SUB.
(a) Certificate of Designation. Prior to the Closing, the Parent shall
file with the Secretary of State of the State of Delaware a certificate of
designation in the form set forth on Exhibit A hereto setting forth the
rights and preferences of the holders of Series J Preferred Stock (the
"Certificate of Designation").
(b) Other Actions. Parent and Merger Sub agree and covenant to use
their best efforts to cause the consummation of the Merger and further
agree and covenant not to take any action that is inconsistent with their
obligations under this Agreement in any material respect that could
reasonably be expected to hinder or delay the consummation of the Merger.
(c) Reservation of Conversion Shares. From and after the Closing and
for so long as any shares of Series J Preferred Stock are outstanding,
Parent covenants and agrees to continue to reserve, free of preemptive
rights and other preferential rights, a sufficient number of its previously
authorized but unissued shares of its Common Stock to satisfy the rights of
conversion of the holders of the Series J Preferred Stock.
(d) Additional Post-Closing Covenants. Parent and Merger Sub shall use
their respective best endeavors to procure, as promptly as possible after
Closing, that the certificate of incorporation of Parent be amended to
amend the terms of each sub-series of Parent's Series G Participating
Convertible Preferred Stock and Parent's Series H Participating Convertible
Preferred Stock to provide that the issuance of the Series I Preferred
Stock and the Series J Preferred Stock or the conversion of such shares
into Common Stock shall not be deemed an issuance of "Additional Shares of
Common Stock" or otherwise result in a change in the Conversion Price of
such preferred stock as that term is defined in the respective Certificates
of Designations, Preferences and Relative, Participating, Optional and
Other Special Rights and Qualifications, Limitations and Restrictions (the
"Carve-out Amendment").
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ARTICLE V.
ADDITIONAL AGREEMENTS
5.1 CLAIMS FOR INDEMNIFICATION.
(a) Parent shall indemnify and hold harmless, prior to the Merger,
each holder of Company Common Stock, and following the Merger, each holder
of Series J Preferred Stock, and such holder's respective officers,
directors, employees, agents, partners, representatives, subsidiaries,
affiliates and permitted successors and assigns from and against, and
promptly reimburse for, any and all loss, diminution in value, damage,
cost, expense (including court costs and reasonable attorneys' fees and
costs of investigation), fine, penalty, suit, action, claim, deficiency,
liability or obligation (collectively, "Losses") caused by or arising from
(i) any breach by Parent or Merger Sub of any representation, warranty or
other provision set forth in this Agreement, (ii) any and all claims of
third parties made based upon facts alleged that, if true, would constitute
any breach set forth in clause (i) above, or (iii) any claims by third
parties relating to the Acquisition or the Merger.
(b) The representations, warranties, covenants and agreements
contained in this Agreement shall not be affected by any party hereto or by
anyone on behalf of any such party: (i) investigating, verifying or
examining any matters with respect to Parent or Merger Sub or the
transactions contemplated hereby; (ii) having the opportunity to
investigate, verify or examine any matters related to Parent or Merger Sub
or the transactions contemplated hereby; or (iii) failing to determine or
discover any facts which were determinable or discoverable by any such
party. All rights contained in this Agreement are cumulative and are in
addition to all other rights and remedies that are otherwise available
pursuant to the terms of this Agreement or applicable law.
5.2 EXCULPATION. Parent and Merger Sub agree with the Company that each
of Parent and Merger Sub and their agents, advisors, assigns, and successors, as
applicable, fully and generally agree to waive, release, remise, acquit, and
discharge prior to the Merger, each holder of Company Common Stock and after the
Merger, each holder of Series J Preferred Stock and each of their affiliates and
their respective present or former officers, directors, partners, joint ventures
and successors and assigns (collectively, the "Releasees") and covenant not to
xxx or otherwise institute or cause to be instituted or in any way participate
in (except at the request of the applicable Releasee) any legal or other
proceedings or actions against any Releasee with respect to any matter
whatsoever arising out of or relating to this Agreement, including, but not
limited to any and all liabilities, claims, demands, contracts, debts,
obligations, and causes of action of every nature, kind and description, in law,
equity, or otherwise, whether or not now known or ascertained, which heretofore
do, or hereafter may, exist. This Section 5.2 shall not apply to any fraudulent
act by a Releasee or with respect to a breach of any representation, warranty or
other provision of the Company set forth in this Agreement.
5.3 DEFENSE OF THIRD-PARTY CLAIMS. With respect to each third-party
claim subject to Section 5.1 (a "Third-party Claim"), the party seeking
indemnification (the "Indemnified Party") shall give prompt notice to Parent of
the Third-party Claim, provided that failure to give such notice promptly shall
not relieve or limit the obligations of Parent except to the extent Parent is
prejudiced thereby. Parent, at its sole cost and expense, may, upon notice of
the Third-party Claim, assume the defense of the Third-party Claim. If it
assumes the defense of a Third-party Claim, then Parent shall select counsel
reasonably satisfactory to the Indemnified Party to conduct the defense. Parent
shall not consent to a settlement of, or the entry of any judgment arising from,
any Third-party Claim, unless (i) the settlement or judgment is solely for money
damages and Parent admits in writing its liability to hold the Indemnified Party
harmless from and against any losses, damages, expense and liabilities arising
out of such settlement or (ii) the Indemnified Party consents thereto, which
9
consent shall not be unreasonably withheld and, in the case of either clause (i)
or clause (ii), the settlement contains an unconditional release of the
Indemnified Party with respect to the Third-party Claim from each Person
asserting such claim and does not contain an admission of fault on the part of
the Indemnified Party. Parent shall provide the Indemnified Party with fifteen
(15) days prior notice before it consents to a settlement of, or the entry of a
judgment arising from, any Third-party Claim. The Indemnified Party shall be
entitled to participate in the defense of any Third-party Claim, the defense of
which is assumed by Parent, with its own counsel and at its own expense. With
respect to Third-party Claims in which the remedy sought is not solely money
damages, (i) Parent shall, upon notice to the Indemnified Party within fifteen
(15) days after Parent receives notice of the Third-party Claim, be entitled to
participate in the defense with its own counsel at its own expense and (ii) the
Indemnified Party shall not consent to any settlement of, or entry of any
judgment arising from, such Third-party Claim unless Parent consents thereto,
which consent shall not be unreasonably withheld. If Parent does not elect to
assume or participate in the defense of any Third-party Claim in accordance with
the terms of this Section, then Parent shall be bound by the results obtained by
the Indemnified Party with respect to the Third-party Claim. The parties shall
cooperate in the defense of any Third-party Claim and the relevant records of
each party shall be made available on a timely and reasonable basis.
5.4 SURVIVAL. All representations, warranties, covenants and agreements
of Parent and the Company contained herein shall survive the execution and
delivery of this Agreement and the consummation of the Merger and the other
transactions contemplated hereby.
5.5 TAX AND ACCOUNTING TREATMENT. Each of Parent, Merger Sub and the
Company shall not take any action and shall not fail to take any action which
action or failure to act would prevent, or would be likely to prevent, the
Merger from qualifying as a reorganization within the meaning of Section 368(a)
of the Code. Amounts paid with respect to indemnity claims under this Agreement
or amounts paid pursuant to Section 7.3 of this Agreement shall be increased to
the extent of any increase in tax liability that is imposed on the party
receiving such amounts (including any increase thereof resulting from the
application of this sentence).
5.6 FURTHER ASSURANCES. In case at any time after the Effective Time any
further action is reasonably necessary to carry out the purposes of this
Agreement, the proper officers of the Company, Parent and Merger Sub shall take
any such reasonably necessary action.
ARTICLE VI.
CONDITIONS PRECEDENT
6.1 CONDITIONS TO THE OBLIGATIONS OF PARENT AND MERGER SUB TO CONSUMMATE
THE MERGER. The obligation of Parent and Merger Sub to consummate the Merger is
subject to the satisfaction or written waiver by Parent, on or before the
Closing, of the following conditions:
(a) The representations and warranties of the Company contained in
Article III shall be true, complete and correct in all material respects on
and as of the Closing with the same effect as though such representations
and warranties had been made on and as of the Closing.
(b) The Company shall have performed and complied with all covenants
agreements contained herein required to be performed or complied with by it
prior to or at the Closing.
(c) The Company shall have obtained all necessary consents of and made
all required filings with any governmental authority or agency or third
party required to be obtained prior to the Closing under applicable law and
relating to the Merger.
(d) The Company shall have delivered to Parent (1) resolutions
approved by the Board of Directors of the Company authorizing the Merger
and in full force and effect at the time of Closing, (2) resolutions
approved by the Company's stockholders approving the Merger and in full
force and effect at the time of Closing, and (3) a good standing
certificate with respect to the Company from the Secretary of State of the
State of Delaware dated a recent date before the Closing.
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(e) No temporary restraining order, preliminary or permanent
injunctions or other order issued by any court of competent jurisdiction or
other legal or regulatory restraint or provision challenging the Merger
shall be in effect, nor shall any proceeding brought by an administrative
agency or commission or other governmental authority or instrumentality
seeking any of the foregoing be pending.
6.2 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligation of the
Company to consummate the Merger is subject to the satisfaction, on or before
the Closing, of the following conditions:
(a) The representations and warranties of Parent and Merger Sub
contained in Article III shall be true, complete and correct in all
material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the Closing.
(b) The rights, obligations and interest of Parent in and under the
binding term sheet between GLH GmbH and Parent, attached hereto as Exhibit
B (the "Term Sheet"), shall have been validly and effectively assigned and
transferred to the Company.
(c) Parent and Merger Sub shall have performed and complied with all
covenants and agreements contained herein required to be performed or
complied with by them prior to or at the Closing.
(d) Parent and certain of its stockholders shall have executed and
delivered (i) the Third Amended and Restated Stockholders Agreement in form
and substance substantially similar to the Existing Stockholders Agreement
other than the addition of the holders of the Parent's Series I Preferred
Stock and Series J Preferred Stock as parties thereto and the addition of a
director of Parent to be designated by BNP Europe Telecom & Media Fund II,
LP and (ii) the Fourth Amended and Restated Registration Rights Agreement
in form and substance substantially similar to the Existing Registration
Rights Agreement other than the addition of the holders of the Parent's
Series I Preferred Stock and Series J Preferred Stock as parties thereto.
(e) Parent and Merger Sub, as the case may be, shall have obtained all
necessary consents of and made all required filings with any governmental
authority or agency or third party required to be obtained prior to the
Closing under applicable law and relating to the consummation of the Merger
and the other transactions contemplated hereby.
(f) The stockholders of Parent shall have approved the Carve-out
Amendment.
(g) Parent shall have delivered to the Company (1) a copy of the
Certificate of Designation, certified by the Secretary of State of the
State of Delaware, (2) resolutions approved by the Board of Directors of
Parent and Merger Sub authorizing the Merger and in full force and effect
at the time of Closing, and (3) good standing certificates with respect to
Parent and Merger Sub from the Secretary of State of the State of Delaware
dated a recent date before the Closing.
(h) No temporary restraining order, preliminary or permanent
injunctions or other order issued by any court of competent jurisdiction or
other legal or regulatory restraint or provision challenging the Merger and
the other transactions contemplated hereby shall be in effect, nor shall
any proceeding brought by an administrative agency or commission or other
governmental authority or instrumentality seeking any of the foregoing be
pending.
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(i) Xxxxxx & Xxxxxxx LLP shall have delivered an opinion regarding the
authorization and issuance of the Series J Preferred Stock and certain
other matters to the Company and each of the Holders of the Company Common
Stock in form and substance reasonably acceptable to such holders.
ARTICLE VII.
TERMINATION AND LIQUIDATED DAMAGES
7.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time:
(a) By mutual written consent of Parent and the Company;
(b) By either the Company or Parent by providing written notice to the
other if the Merger shall not have been consummated by the date which is 30
days from the date of this Agreement; provided further that the right to
terminate this Agreement under this Section 7.1(b) shall not be available
to any party whose failure to fulfill any obligation under this Agreement
has been the cause of, or resulted in, the failure of the Merger to occur
on or before such date;
(c) By either the Company or Parent by providing written notice to the
other if any Governmental Entity shall have issued an order, decree or
ruling or taken any other action permanently restraining, enjoining or
otherwise prohibiting the Merger (each a "Restraint"), and such order,
decree, ruling or other action shall have become final and non-appealable;
provided, however, that the party seeking to terminate this Agreement
pursuant to this Section 7.1(c) shall have used its reasonable best efforts
to resist, resolve or lift, as applicable, such Restraint and to prevent
such Restraint from becoming final and non-appealable.
7.2 EFFECT OF TERMINATION. In the event of termination of this Agreement
by either the Company or Parent as provided in Section 7.1, this Agreement shall
forthwith become void and there shall be no liability or obligation on the part
of Parent, Merger Sub or the Company or their respective officers or directors.
Notwithstanding the foregoing, nothing in this Section 7.2 shall be deemed to
release any party from any liability for any willful breach of any
representation, warranty, covenant or obligation contained in this Agreement.
This Section 7.2 shall survive any termination of this Agreement.
7.3 LIQUIDATED DAMAGES. If after the Closing, any of the actions
referred to in Section 4.2(d) shall not have been accomplished on or before June
30, 2004, Parent shall, upon written demand by a majority of the holders of the
Series J Preferred Stock, pay to the holders of the Series J Preferred Stock on
a pro rata basis an aggregate of One Million Dollars ($1,000,000) as liquidated
damages. The parties agree in advance that actual damages, costs or expenses
would be difficult to ascertain and that the liquidated damages provided for
hereunder is a fair and equitable amount to reimburse the holders of the Series
J Preferred Stock for damages sustained due to Buyer's failure to accomplish the
actions referred to in Section 4.2(d) and is not a penalty in either case.
ARTICLE VIII.
GENERAL PROVISIONS
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; NO OTHER REPRESENTATIONS
AND WARRANTIES. The representations and warranties of Parent shall survive the
Closing. Each party hereto agrees that, except for the representations and
warranties contained in this Agreement, none of the Company, Parent or Merger
Sub makes any other representations or warranties, and each hereby disclaims any
other representations and warranties made by itself or any of its officers,
directors, employees, agents, financial and legal advisors or other
representatives, with respect to the execution and delivery of this Agreement,
the documents and the instruments referred to herein, or the Merger or thereby,
notwithstanding the delivery or disclosure to the other party or the other
party's representatives of any documentation or other information with respect
to any one or more of the foregoing.
12
8.2 AMENDMENT. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of Directors, at any time
before or after approval of the matters presented in connection with the Merger
by the stockholders of the Company and Parent, but, after any such approval, no
amendment shall be made which by law or in accordance with the rules of the
American Stock Exchange requires further approval by such stockholders without
such further approval. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
8.3 EXTENSION; WAIVER. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party. No delay on
the part of any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party hereto of any right, power or privilege hereunder operate as a waiver
of any other right, power or privilege hereunder, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege hereunder. Unless otherwise provided, the rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies which
the parties hereto may otherwise have at law or in equity. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
8.4 NOTICES. Any notice, request, claim, demand, waiver, consent,
approval or other communication which is required or permitted hereunder shall
be in writing and shall be deemed given if delivered personally, by facsimile
transmission with receipt of delivery (one business day after confirmation in
the case of transmissions to non-U.S. residents), or sent by registered or
certified mail, postage prepaid, return receipt requested, or by internationally
recognized overnight courier service (two business days after deposit with such
overnight courier service in the case of deliveries to non-U.S. residents), as
follows:
(a) if to Parent or Merger Sub, to:
Cogent Communications Group, Inc.
0000 00xx Xxxxxx
Xxxxxxxxxx, X.X 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxxxx
(b) if to the Company, to:
c/o Cogent Communications Group, Inc.
0000 00xx Xxxxxx
Xxxxxxxxxx, X.X 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxxxx
8.5 INTERPRETATION. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a Section of or
Exhibit or Schedule to this Agreement unless otherwise indicated. The table of
contents, glossary of defined terms and headings contained in this Agreement are
13
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden or proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statue or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the content requires otherwise. It is understood
and agreed that neither the specifications of any dollar amount in this
Agreement nor the inclusion of any specific item in the Schedules or Exhibits is
intended to imply that such amounts or higher or lower amounts, or the items so
included or other items, are or are not material, and neither party shall use
the fact of setting of such amounts or the fact of the inclusion of such item in
the Schedules or Exhibits in any dispute or controversy between the parties as
to whether any obligation, item or matter is or is not material for purposes
hereof.
8.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
8.7 ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES. This Agreement
(including the Schedules and Exhibits) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof, other than. This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, except for the
provisions of Article 2, is intended to or shall confer upon any other Person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
8.8 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without regard to the laws
that might be applicable under conflicts of laws principles.
8.9 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the Merger is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the Merger are consummated as
originally contemplated to the greatest extent possible. Any provision of this
Agreement held invalid or unenforceable only in part, degree or certain
jurisdictions will remain in full force and effect to the extent not held
invalid or unenforceable. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
8.10 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto, in
whole or in part (whether by operation of law or otherwise), without the prior
written consent of the other parties, and any attempt to make any such
assignment without such consent shall be null and void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
8.11 ENFORCEMENT. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity.
14
8.12 DEFINITIONS. As used in this Agreement:
(a) "Board of Directors" means the Board of Directors of any specified
Person and any properly serving and acting committees thereof.
(b) "Organizational Documents" means, with respect to any entity, the
certificate of incorporation, bylaws or other governing documents of such
entity.
(c) "Person" means an individual, corporation, partnership, limited
liability company association, trust, unincorporated organization, entity
or group (as defined in the Exchange Act).
(d) "Subsidiary" when used with respect to any party means any
corporation or other organization, whether incorporated or unincorporated,
(i) of which such party or any other Subsidiary of such party is a general
partner (excluding partnerships, the general partnership interests of which
held by such party or any Subsidiary of such party do not have a majority
of the voting and economic interests in such partnership) or (ii) at least
a majority of the securities or other interests of which having by their
terms ordinary voting power to elect a majority of the Board of Directors
or others performing similar functions with respect to such corporation or
other organization is directly or indirectly owned or controlled by such
party or by any one or more of its Subsidiaries, or by such party and one
or more of its Subsidiaries.
(e) "the other party" means, with respect to the Company, Parent and
means, with respect to Parent, the Company.
15
IN WITNESS WHEREOF, Parent, the Company and Merger Sub have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of March 30, 2004.
COGENT COMMUNICATIONS GROUP, INC.
By: /s/ XXXXX XXXXXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
DE MERGER SUB, INC.
By: /s/ XXXXX XXXXXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
SYMPOSIUM OMEGA, INC.
By: /s/ XXXXXX X. XXXXX, XX.
-----------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: President
--------------------------------------------------------------------------------
PARENT DISCLOSURE SCHEDULE
Parent has outstanding options to purchase up to 1,600 shares of Common
Stock, warrants convertible into 103,776 shares of Common Stock and notes
convertible into 21,329 shares of its Common Stock.
--------------------------------------------------------------------------------
16
