1
EXHIBIT 2.01
FORM OF
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of , 1999 (the
"Agreement"), is made by and between AppliedTheory Corporation (formerly
AppliedTheory Inc.), a Delaware corporation ("AppliedTheory"), and AppliedTheory
Communications, Inc. (formerly XXXXXXxx.xxx, Inc.), a New York corporation
("AppliedTheory Communications").
WHEREAS, AppliedTheory and AppliedTheory Communications have
each determined that it is in the best interests of their respective
stockholders for AppliedTheory Communications to merge with and into
AppliedTheory upon the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the respective Boards of Directors of AppliedTheory
and AppliedTheory Communications have each approved this Agreement and the
consummation of the transactions contemplated hereby and approved the execution
and delivery of this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I.
THE MERGER
1.1 MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.2), AppliedTheory
Communications will be merged with and into AppliedTheory and the separate
corporate existence of AppliedTheory Communications will thereupon cease (the
"Merger") in accordance with the applicable provisions of the New York Business
Corporation Law ("BCL"), including, without limitation, Sections 905 and 907
thereof, and the Delaware General Corporation Law ("DGCL").
1.2 EFFECTIVE TIME. As soon as practicable after satisfaction
or waiver of all conditions to the Merger, AppliedTheory and AppliedTheory
Communications shall cause a certificate of ownership and merger complying with
the requirements of the DGCL (the "Delaware Certificate of Merger") to be filed
with the Secretary of State of the State of Delaware and a certificate of merger
complying with the requirements of the BCL (the "New York Certificate of
Merger") to be filed with the Secretary of State of the State of New York. The
Merger will become effective at the time of the later of the following to occur:
(a) the filing of the Delaware Certificate of Merger with the Secretary of State
of the State of Delaware, (b) the filing of the New York Certificate of Merger
with Secretary of State of the State of New York, or (c) such later time as
shall be specified in such filings (the "Effective Time").
2
1.3 EFFECT OF MERGER. The Merger will have the effects
specified in the BCL, the DGCL and this Agreement. Without limiting the
generality of the foregoing, AppliedTheory will be the surviving corporation in
the Merger (sometimes hereinafter referred to as the "Surviving Corporation")
and will continue to be governed by the laws of the State of Delaware, and the
separate corporate existence of AppliedTheory and all of its rights, privileges,
powers and franchises, public as well as private, and all its debts, liabilities
and duties as a corporation organized under the DGCL, will continue unaffected
by the Merger.
1.4 CERTIFICATE OF INCORPORATION AND BY-LAWS. The Certificate
of Incorporation and By-laws of AppliedTheory in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation and By-laws of the
Surviving Corporation, until amended in accordance with their terms and the
DGCL.
1.5 DIRECTORS AND OFFICERS OF SURVIVING CORPORATION. The
directors and officers of AppliedTheory immediately prior to the Effective Time
will be the directors and officers, respectively, of the Surviving Corporation,
from and after the Effective Time, until their successors have been duly elected
or appointed and qualified or until their earlier death, resignation or removal
in accordance with the terms of the Surviving Corporation's Certificate of
Incorporation and By-laws and the DGCL.
1.6 ADDITIONAL ACTIONS. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any further
deeds, assignments or assurances in law or any other acts are necessary or
desirable to (i) vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties or assets of AppliedTheory Communications, or (ii) otherwise
carry out the purposes of this Agreement, AppliedTheory Communications and its
officers and directors shall be deemed to have granted to the Surviving
Corporation an irrevocable power of attorney to execute and deliver all such
deeds, assignments or assurances in law or any other acts as are necessary or
desirable to (a) vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties or assets of AppliedTheory Communications and (b) otherwise
carry out the purposes of this Agreement, and the officers and directors of the
Surviving Corporation are authorized in the name of AppliedTheory Communications
or otherwise to take any and all such action.
ARTICLE II.
CONVERSION OF SHARES
2.1 CONVERSION OF SHARES. At the Effective Time:
(a) each then outstanding share of voting common stock, par
value $.01 per share, and non-voting common stock, par value $.01 per
share, of AppliedTheory Communications (collectively, "AppliedTheory
Communications
2
3
Common Stock") shall by virtue of the Merger, and without any action on
the part of AppliedTheory Communications, AppliedTheory or the holder
thereof, be converted into such number of shares of legally and validly
issued, fully-paid and nonassessable common stock, par value $.01 per
share, of AppliedTheory ("AppliedTheory Common Stock"), as may be
determined by the Capital Formation Committee of the Board of Directors
of AppliedTheory Communications (such committee consisting of Xxxxxxx
Xxxxxxxxxx, Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxx) (the "Capital
Formation Committee") after consultation with the representatives of
the underwriters of the initial public offering of AppliedTheory
contemplated by the Registration Statement on Form S-1 (Registration
No. 333-72133) filed by AppliedTheory with the Securities and Exchange
Commission (the "Initial Public Offering") (provided, that each holder
of AppliedTheory Communications Common Stock immediately prior to the
Effective Time shall have his or her shares converted into such number
of shares of AppliedTheory Common Stock representing the same
percentage of the total outstanding AppliedTheory Common Stock
immediately following the Effective Time (without giving effect to the
Initial Public Offering) as the percentage of the total outstanding
AppliedTheory Communications Common Stock held by such holder
immediately prior to the Effective Time);
(b) each then outstanding share of Preferred Stock, par value
$.01 per share, of AppliedTheory Communications ("AppliedTheory
Communications Preferred Stock") shall by virtue of the Merger, and
without any action on the part of AppliedTheory Communications,
AppliedTheory or the holder thereof, be converted into such number of
shares of legally and validly issued, fully-paid and nonassessable
Preferred Stock, par value $.01 per share, of AppliedTheory
("AppliedTheory Preferred Stock"), as may be determined by the Capital
Formation Committee after consultation with the representatives of the
underwriters of the Initial Public Offering (provided, that each holder
of AppliedTheory Communications Preferred Stock immediately prior to
the Effective Time shall have his or her shares converted into such
number of shares of AppliedTheory Preferred Stock representing the same
percentage of the total outstanding AppliedTheory Preferred Stock
immediately following the Effective Time as the percentage of the total
outstanding AppliedTheory Communications Preferred Stock held by such
holder immediately prior to the Effective Time);
(c) each share of AppliedTheory Common Stock issued and
outstanding immediately prior to the Effective Time and owned by
AppliedTheory Communications will be cancelled and retired.
2.2 ASSUMPTION OF OPTIONS.
Each option or other right, whether vested before or after the
Effective Date, to purchase or otherwise acquire shares of
AppliedTheory Communications Common Stock pursuant to stock option or
other stock-based plans of AppliedTheory Communications and each other
similar right to acquire shares of
3
4
AppliedTheory Communications Common Stock, in each case granted and
outstanding immediately prior to the Effective Time, shall, by virtue
of the Merger, and without any action on the part of the holder of such
option or right, be converted into and become a right to purchase or
otherwise acquire such number of shares of AppliedTheory Common Stock
at a price per share that, in the case of both the number of shares and
price per share, gives effect to the conversion rate with respect to
AppliedTheory Communications Common Stock as determined in accordance
with Section 2.1(a). All other terms and conditions applicable to such
options or other rights immediately prior to the Effective Time shall
remain the same.
2.3 CERTIFICATES.
(a) After the Effective Time, any certificate theretofore
evidencing outstanding shares of AppliedTheory Communications Common
Stock shall, without any action on the part of the holder thereof,
represent the number of shares of AppliedTheory Common Stock into which
such AppliedTheory Communications Common Stock shall have been
converted as provided in Section 2.1(a).
(b) After the Effective Time, any certificate theretofore
evidencing outstanding shares of any series of AppliedTheory
Communications Preferred Stock shall, without any action on the part of
the holder thereof, represent the number of shares of AppliedTheory
Preferred Stock into which such AppliedTheory Communications Preferred
Stock shall have been converted as provided in Section 2.1(b).
(c) If, after the Effective Time, certificates formerly
representing shares of AppliedTheory Communications Common Stock or
AppliedTheory Communications Preferred Stock are surrendered to the
Surviving Corporation for exchange or transfer, they shall be cancelled
and certificates representing shares of AppliedTheory Common Stock or
AppliedTheory Preferred Stock, as the case may be, shall be issued to
the holder or transferee thereof, as the case may be.
ARTICLE III.
CONDITIONS
3.1 SHAREHOLDER APPROVAL.
Consummation of the Merger is subject to the satisfaction at
or prior to the Effective Time of the Merger of the following condition:
This Agreement and the Merger shall have been adopted and
approved by: (i) the affirmative vote of two-thirds of the votes of the
shares of AppliedTheory Communications Common Stock (both voting and
non-voting) and AppliedTheory Communications Preferred Stock entitled
to vote thereon, voting
4
5
together as a single class, (ii) the affirmative vote of a majority of
the votes of the shares of AppliedTheory Communications Common Stock
(both voting and non-voting) entitled to vote thereon, voting
separately as a class, and (iii) the affirmative vote of a majority of
the votes of the shares of AppliedTheory Communications Preferred Stock
entitled to vote thereon, voting separately as a class. This Agreement
and the Merger shall also have been adopted and approved by
AppliedTheory Communications as the holder of all the outstanding
shares of AppliedTheory Common Stock prior to the Effective Time of the
Merger.
ARTICLE IV.
TERMINATION
This Agreement shall be terminated and abandoned without
further action by the parties hereto in the event that one or more of the Boards
of Directors of AppliedTheory or AppliedTheory Communications by requisite
action deems it advisable to terminate and abandon this Agreement, and in such
event this Agreement shall have no further force or effect and there shall be no
liability on the part of the parties hereto.
ARTICLE V.
MISCELLANEOUS
5.1 DESIGNATION AND NUMBER OF OUTSTANDING SHARES.
AppliedTheory Communications.
Designation of Shares Shares
Class Authorized Outstanding(1)
------------------------ ---------- --------------
Voting Common Stock, par 25,000,000 10,551,745
value $.01 per share
Non-Voting Common Stock, 5,000,000 54,851
par value $.01 per share
Preferred Stock, par value 75,000 15,000
$.01 per share
------------------------------------
(1) Based on number of shares outstanding as of January 31, 1999. Outstanding
shares of Voting Common Stock and Non-Voting Common Stock of AppliedTheory
Communications are subject to increase in the event of the exercise of
outstanding stock options prior to the Effective Time. No outstanding shares of
Voting Common Stock, Non-Voting Common Stock or Preferred Stock of AppliedTheory
Communications are owned by AppliedTheory.
5
6
AppliedTheory.
Designation of Shares Shares
Class Authorized Outstanding(1)
------------------------ ---------- --------------
Common Stock, par value 60,000,000 100
$.01 per share
Preferred Stock, par value 1,000,000 0
$.01 per share
------------------------------------
(1) Based on number of shares outstanding as of January 31, 1999. AppliedTheory
owns none of its outstanding shares of Common Stock.
5.2 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall constitute one and the same
instrument.
5.3 AMENDMENTS. Subject to applicable law, and except as
otherwise provided herein, this Agreement may be amended, modified or
supplemented only by written agreement of AppliedTheory and
AppliedTheory Communications or by their respective officers thereunto
duly authorized, at any time prior to the Effective Date.
5.4 GOVERNING LAW. This Merger Agreement shall be construed in
accordance with the laws of the State of Delaware applicable to
contracts made and to be performed entirely within such State.
6
7
IN WITNESS WHEREOF, each undersigned corporation has caused
this Agreement and Plan of Merger to be executed as of the date first written
above by a duly authorized officer.
AppliedTheory Corporation,
a Delaware corporation
By: _________________________
Xxxxxxx Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
Attest:
_________________________
Xxxxx X. Xxxxxx
Vice President and Chief Financial
Officer and Assistant Secretary
(Corporate Seal)
AppliedTheory Communications, Inc., a New York
corporation
By: _________________________
Xxxxxxx Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
Attest:
_________________________
Xxxxx X. Xxxxxx
Vice President and Chief Financial
Officer and Assistant Secretary
(Corporate Seal)
7
