Exhibit 10.22
AGREEMENT AND PLAN OF MERGER
OF
NORTHPOINT MERGER SUB, INC.,
a Delaware corporation,
AND
NORTHPOINT COMMUNICATIONS, INC.,
a Delaware corporation
AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of March 22,
1999, among NorthPoint Merger Sub, Inc., a Delaware corporation ("Merger Sub"),
NorthPoint Communications Holdings, Inc., a Delaware corporation (the "Holding
Company"), and NorthPoint Communications, Inc., a Delaware corporation ("NCI").
WHEREAS, Merger Sub is a corporation duly organized and validly
existing under the laws of the State of Delaware. The authorized capital stock
of Merger Sub consists of 1,000 shares of Common Stock, $.01 par value per
share, of which as of March 22, 1999, there were 100 shares issued and
outstanding, all of which are owned by the Holding Company.
WHEREAS, NCI is a corporation duly organized and validly existing under the
laws of the State of Delaware. The authorized capital stock of NCI consists of
110,761,600 shares, 75,000,000 of which are designated "Common Stock," $0.001
par value per share (the "NCI Common Stock"), of which 11,162,113 shares are
outstanding, and 35,761,600 of which are designated "Preferred Stock," $0.001
par value per share, of which 17,563,187 shares are designated "Series B
Preferred Stock," 16,450,721 of which are outstanding (the "NCI Series B
Preferred Stock"), and 18,198,413 shares are designated "Series C Preferred
Stock," 18,009,405 of which are outstanding (the "NCI Series C Preferred Stock,"
and together with the NCI Common Stock and the NCI Series B Preferred Stock, the
"NCI Capital Stock").
WHEREAS, the Holding Company is a corporation duly organized and validly
existing under the laws of the State of Delaware. The authorized capital stock
of the Holding Company consists of 170,000,000 shares, 125,000,000 of which are
designated "Common Stock," $0.001 par value per share (the "Holding Company
Common Stock"), none of which are outstanding, and 45,000,000 of which are
designated "Preferred Stock," $0.001 par value per share, of which 17,563,187
shares are designated "Series B Preferred Stock," none of which are outstanding
(the "Holding Company Series B Preferred Stock"), 18,198,413 shares are
designated "Series C Preferred Stock," none of which are outstanding (the
"Holding Company Series C Preferred Stock"), 3,640,000 shares are designated
"Series D Preferred Stock," none of which are outstanding (the "Holding Company
Series D Preferred Stock"), and 3,640,000 shares are designated as "Series D-1
Preferred Stock," none of which are outstanding (the "Holding Company Series D-1
Preferred Stock"). 8,000,000 shares of the Common Stock authorized to be
issued are designated as "Class B Common Stock," none of which are outstanding
(the "Holding Company Class B Common Stock," and together with the Holding
Company Common Stock, the Holding Company Series B Preferred Stock, the
Holding Company Series C Preferred Stock, the Holding Company Series D
Preferred Stock and the Holding Company Series D-1 Preferred Stock, the
"Holding Company Capital Stock").
WHEREAS, Section 251 of the General Corporation Law of the State of
Delaware permits the merger of two business corporations of the State of
Delaware.
WHEREAS, Merger Sub, the Holding Company and NCI and the respective
Boards of Directors thereof deem it advisable and to the advantage, welfare, and
best interests of said corporations and their respective stockholders to merge
Merger Sub with and into NCI (the "Merger") pursuant to the provisions of the
General Corporation Law of the State of Delaware, whereby, among other things,
each issued and outstanding share of NCI Capital Stock will be exchanged and
converted into the right to receive shares of Holding Company Capital Stock,
upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
TERMS
Section 1.1. Upon the effective time of the Merger (as defined
below), Merger Sub shall be merged with and into NCI pursuant to the provisions
of the General Corporation Law of the State of Delaware, with NCI as the
surviving corporation (sometimes hereinafter referred to as the "Surviving
Corporation"). NCI shall continue to exist under its present name pursuant to
the provisions of the General Corporation Law of the State of Delaware. The
separate existence of Merger Sub shall cease at such effective time in
accordance with the provisions of the General Corporation Law of the State of
Delaware, and NCI shall succeed, without other transfer, to all of the rights
and property of Merger Sub and shall assume all of the liabilities and
obligations of Merger Sub.
Section 1.2. If this Agreement is duly adopted by the requisite vote
or written consent of the stockholders entitled to vote thereon of each of
Merger Sub and NCI, as provided by the applicable laws of the State of Delaware,
this Agreement, executed in accordance with the law of the State of Delaware,
shall be filed with the Secretary of State of the State of Delaware. The Merger
shall become effective when this Agreement has been filed with the Secretary of
State of the State of Delaware, unless this Agreement is previously terminated
by the Board of Directors of either Merger Sub or NCI, notwithstanding approval
of this Agreement by the stockholders of either or both of Merger Sub or NCI,
herein sometimes referred to as the "effective time."
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ARTICLE II.
CERTIFICATE OF INCORPORATION AND BYLAWS
Section 2.1. From and after the effective time, the Certificate of
Incorporation of NCI shall be amended so that Article IV of NCI's Certificate of
Incorporation shall read in its entirety as follows: "The total number of shares
of all classes of stock which the Corporation is authorized to issue is 1,000,
all of which shall consist of Common Stock, par value $0.001 per share.", and,
as so amended, shall be the Certificate of Incorporation of the Surviving
Corporation and shall continue in full force and effect until changed, altered
or amended as therein provided and in the manner prescribed by the provisions of
the General Corporation Law of the State of Delaware.
Section 2.2. The Bylaws of NCI in effect at the effective time of the
Merger shall be the Bylaws of Surviving Corporation and shall continue in full
force and effect until changed, altered or amended as therein provided and in
the manner prescribed by the provisions of the General Corporation Law of the
State of Delaware.
ARTICLE III.
OFFICERS AND DIRECTORS
The directors and officers of NCI in office immediately prior to the
effective time of the Merger shall be the directors and officers, respectively
of the Surviving Corporation, all of whom shall hold their directorships and
offices until the election and qualification of their respective successors or
until their tenure is otherwise terminated in accordance with the Bylaws of the
Surviving Corporation.
ARTICLE IV.
EFFECT OF THE MERGER ON CAPITAL STOCK;
EXCHANGE OF CERTIFICATES
Section 4.1. Upon the effective time of the Merger:
(a) Each share of Common Stock, $0.01 par value per share, of Merger
Sub issued and outstanding immediately prior to the effective time shall, by
virtue of the Merger and without any action on the part of the holders thereof,
be automatically converted into one share of common stock, $0.001 par value per
share, of the Surviving Corporation.
(b) Each share of NCI Capital Stock, $0.001 par value per share, that
is (1) owned by NCI as treasury stock, or (2) authorized but unissued, shall, by
virtue of the Merger and without any action on the part of Merger Sub or NCI,
cease to be outstanding, be canceled and retired without payment of any
consideration therefor and cease to exist.
(c) Each share of NCI Common Stock issued and outstanding immediately
prior to the effective time (other than shares canceled pursuant to clause (b)
above)
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shall, be exchanged and converted into the right to receive one share of
Holding Company Common Stock.
(d) Each share of NCI Series B Preferred Stock issued and outstanding
immediately prior to the effective time (other than shares canceled pursuant to
clause (b) above) shall, be exchanged and converted into the right to receive
one share of Holding Company Series B Preferred Stock.
(e) Each share of NCI Series C Preferred Stock issued and outstanding
immediately prior to the effective time (other than shares canceled pursuant to
clause (b) above) shall, be exchanged and converted into the right to receive
one share of Holding Company Series C Preferred Stock.
(f) Each certificate representing any such NCI Capital Stock shall
thereafter represent the right to receive a certificate representing the shares
of Holding Company Capital Stock into which such NCI Capital Stock have been
automatically converted.
Section 4.2. Following the effective time, the Holding Company shall
deliver to each holder of record, other than NCI or any subsidiary of NCI, of a
certificate which immediately prior to the effective time represented issued and
outstanding shares of NCI Capital Stock (each an "NCI Certificate"), a
certificate (a "Holding Company Certificate") representing that number of shares
of Holding Company Capital Stock that such holder has the right to receive
pursuant to Section 4.1 with respect to such NCI Certificate, against receipt by
the Holding Company of (i) such NCI Certificate for cancellation, and (ii) an
executed letter of transmittal, and the NCI Certificate so surrendered shall be
canceled. In the event of a transfer of ownership of shares of NCI Capital
Stock that is not registered on the transfer records of NCI, a Holding Company
Certificate representing the proper number of shares of Holding Company Capital
Stock may be issued to a transferee if the NCI Certificate representing such NCI
Capital Stock is presented to the Holding Company, accompanied by all documents
required to evidence and effect such transfer and by evidence that any
applicable stock or other transfer taxes have been paid, Until surrendered as
contemplated in this Section 4.2, each NCI Certificate shall be deemed, on and
after the effective time, to represent only the right to receive upon such
surrender, Holding Company Certificates representing shares of Holding Company
Capital Stock as contemplated by Section 4.1, without interest. No fractional
shares of Common Stock of the Surviving Corporation shall be issued upon the
effective time of the Merger.
Section 4.3. All shares of Holding Company Capital Stock issued upon
the surrender for exchange of shares of NCI Capital Stock in accordance with the
terms of this Article IV shall be deemed to have been issued in full
satisfaction of all rights pertaining to such shares of NCI Capital Stock. If,
after the effective time, any NCI Certificate is presented to the Surviving
Corporation for any reason, such NCI Certificate shall be canceled and exchanged
as provided in this Article IV.
Section 4.4. Neither the Holding Company, Merger Sub nor the Surviving
Corporation shall be liable to any holder of shares of NCI Capital Stock or
Holding Company Capital Stock, as the case may be, for shares of Holding Company
Capital Stock (or dividends or
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distributions with respect thereto) to be issued in exchange for NCI Capital
Stock pursuant to this Article IV, if such shares are properly delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law.
Section 4.5. In the event any NCI Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit to that effect by the
record owner claiming such NCI Certificate to be lost, stolen or destroyed and,
if required by the Holding Company, the posting by such person of a bond in such
amount as the Holding Company may reasonably direct as indemnity against any
claim that may be made against it with respect to such NCI Certificate, the
Holding Company will issue in exchange for such lost, stolen or destroyed NCI
Certificate the shares of Holding Company Capital Stock deliverable in respect
thereof pursuant to this Agreement.
ARTICLE V.
CONVERSION OF OPTIONS AND WARRANTS
Section 5.1. At the effective time, each of NCI's then outstanding
employee stock options (collectively, the "Options") to purchase NCI Common
Stock which have not been exercised or otherwise converted as of the effective
time, by virtue of the Merger and without any further action on the part of any
holder thereof, shall be assumed by the Holding Company and automatically
converted into an option to purchase that number of shares of Holding Company
Common Stock equal to the number of shares of NCI Common Stock covered by such
Option immediately prior to the effective time, at an exercise price per share
of Holding Company Common Stock equal to the exercise price in effect under such
Option immediately prior to the effective time, which option to purchase Holding
Company Common Stock shall contain the same terms, status as an "incentive stock
option" under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code") (if such Option was theretofore an NCI incentive stock option), vesting
schedule (without acceleration thereof by virtue of the Merger and the
transactions contemplated hereby and otherwise be on substantially the same
terms and conditions as set forth in the assumed Option. The parties intend
that the assumption and conversion of Options under this Section 5.1 shall meet
the requirements of Section 424(a) of the Code and this Section 5.1 shall be
interpreted in a manner consistent with such interpretation.
Section 5.2. At the effective time, each of NCI's then outstanding
warrants (collectively, the "Warrants") to purchase NCI Common Stock which have
not been exercised or otherwise converted as of the effective time, by virtue of
the Merger and without any further action on the part of any holder thereof,
shall be assumed by the Holding Company and automatically become exercisable or
convertible into that number of shares of Holding Company Common Stock equal to
the number of shares of NCI Common Stock covered by such Warrant immediately
prior to the effective time, at an exercise price per share of Holding Company
Common Stock equal to the exercise price in effect under such Warrant
immediately prior to the effective time, which Warrant shall be on substantially
the same terms and conditions as set forth in the assumed Warrant.
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ARTICLE VI.
TERMINATION AND AMENDMENT
Section 6.1. At any time prior to the effective time, this Agreement
may be amended by the Boards of Directors of Merger Sub and NCI to the extent
permitted by the laws of the State of Delaware, notwithstanding favorable action
on the Merger by the stockholders of either or both of Merger Sub or NCI.
Section 6.2. At any time prior to the effective time, this Agreement
may be terminated and abandoned by the Board of Directors of either Merger Sub
or NCI, notwithstanding favorable action on the Merger by the stockholders of
either or both of Merger Sub or NCI.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF HOLDING COMPANY
The Holding Company hereby represents and warrants to NCI and its
stockholders as follows:
Section 7.1. The Holding Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has full corporate power and authority to
own or lease its properties and conduct its business as currently conducted,
and is duly qualified as a foreign corporation and in good standing in all
jurisdictions in which the character of the property owned or leased or the
nature of the business transacted by it makes qualification necessary except
where the failure to be so qualified would not have a material adverse effect
on the business, properties, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect"). The outstanding shares of capital stock of each of its subsidiaries
have been duly authorized and validly issued, are fully paid and non-
assessable, and are owned by the Holding Company free and clear of all liens,
encumbrances and equities and claims; and no options, warrants or other rights
to purchase, agreements or other obligations to issue or other rights to
convert any obligations into shares of capital stock or ownership interests in
such subsidiaries are outstanding.
Section 7.2. The Holding Company Capital Stock, when issued to the
stockholders of NCI as provided herein, will be duly and validly issued, fully
paid and nonassessable. The Holding Company has all requisite right, power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by the Holding Company, and the consummation by the
Holding Company of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Holding Company and, no
other proceedings are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly executed
and delivered by the Holding Company and constitutes the legal, valid and
binding obligation of the Holding Company
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enforceable against the Holding Company in accordance with its terms. Except
as set forth in the Fifth Amended and Restated Rights Agreement to be executed
by NCI, the Holding Company and certain stockholders of the Holding Company
immediately following the effective time, the issuance of the Holding Company
Capital Stock in accordance with this Agreement are not and will not be
subject to any preemptive rights, rights of first refusal or rights of
participation that have not been properly waived or complied with.
Section 7.3. The execution and delivery of this Agreement by the
Holding Company does not, and the consummation of the transactions
contemplated hereby will not, conflict with, or result in any violation of, or
default under (with or without notice or lapse of time, or both), or give rise
to a right of termination, cancellation, modification or acceleration of any
obligation under (i) any provision of the Amended Certificate of Incorporation
and Amended and Restated Bylaws of the Holding Company or any subsidiary, (ii)
any mortgage, indenture, lease, contract or other agreement or instrument,
permit, concession, franchise or license to which the Company or any
subsidiary or any of their respective properties or assets are subject, or
(iii) any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Company or any subsidiary or their respective properties or
assets, except in the case of (ii) and (iii) for any of the foregoing that in
the aggregate would not have a Material Adverse Effect.
ARTICLE VIII.
MISCELLANEOUS
Section 8.1. In the event that this Agreement shall have been fully
approved and adopted on behalf of Merger Sub and NCI in accordance with the
provisions of the General Corporation Law of the State of Delaware, Merger Sub
and NCI agree that they will cause to be executed and filed and recorded any
document or documents prescribed by the laws of the State of Delaware, and that
they will cause to be performed all necessary acts within the State of Delaware
and elsewhere to effectuate the Merger herein provided for.
Section 8.2. The Board of Directors and the proper officers of Merger
Sub and of NCI are hereby authorized, empowered, and directed to do any and all
acts and things, and to make, execute, deliver, file, and record any and all
instruments, papers, and documents which shall be or become necessary, proper,
or convenient to carry out or put into effect any of the provisions of this
Agreement or of the Merger herein provided for.
Section 8.3. This Agreement has been duly approved by the Board of
Directors of Merger Sub and by the Board of Directors of NCI.
Section 8.4. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement and
Plan of Merger to be executed by duly authorized officers this 22nd day of
March, 1999.
NORTHPOINT MERGER SUB, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Malaga
---------------------------
Xxxxxxx Malaga,
President
NORTHPOINT COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Malaga
----------------------------
Xxxxxxx Malaga,
Chief Executive Officer
NORTHPOINT COMMUNICATIONS
HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Malaga
----------------------------
Xxxxxxx Malaga,
Chief Executive Officer
CERTIFICATE OF SECRETARY
OF
NORTHPOINT COMMUNICATIONS, INC.
The undersigned, Xxxxxx Xxxxxx, hereby certifies that:
1. I am the duly appointed and acting Secretary of NorthPoint
Communications, Inc., a Delaware corporation (the "Corporation").
2. The number of outstanding shares of the Corporation at March 22, 1999,
the date of the approval and adoption of the Agreement and Plan of Merger to
which this certificate is attached by written consent in lieu of a stockholder
meeting, was (i) 11,162,113 shares of Common Stock, $.001 par value (the "Common
Stock"); (ii) 16,450,721 shares of Series B Preferred Stock, $.001 par value
(the "Series A Preferred Stock"); and (iii) 18,009,405 shares of Series C
Preferred Stock, $.001 par value (the "Series C Preferred Stock").
3. The principal terms of the Agreement and Plan of Merger to which this
certificate is attached, have been duly approved by the Board of Directors of
the Corporation, was then submitted to the stockholders of the Corporation for
approval and adoption by written consent in lieu of a stockholder meeting, and
stockholders of the Corporation, holding a number of outstanding shares of each
class equaling or exceeding the vote required in accordance with Delaware
General Corporation Law, adopted and approved the Agreement and Plan of Merger
by executing and delivering a written consent dated March 1, 1999.
4. The percentage vote required of the outstanding shares was (i) more
than 50% of the outstanding shares of Common Stock, voting as a single class;
(ii) more than 50% of the outstanding shares of Series B Preferred Stock, voting
as a single class; and (iii) more than 66-2/3% of the outstanding shares of
Series C Preferred Stock, voting as a single class, which taken together as a
whole constitute the approval of the holders of a majority of the outstanding
stock of the Corporation entitled to vote on the Agreement and Plan of Merger.
I further declare under penalty of perjury under the laws of the State of
Delaware that the matters set forth in this certificate are true and correct and
of my own knowledge.
Dated: March 22, 1999.
/s/ Xxxxxx Xxxxxx
--------------------------
Xxxxxx Xxxxxx,
Secretary of NorthPoint Communications, Inc.
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CERTIFICATE OF SECRETARY
OF
NORTHPOINT MERGER SUB, INC.
The undersigned, Xxxxxx Xxxxxx, hereby certifies that:
1. I am the duly appointed and acting Secretary of NorthPoint Merger Sub,
Inc., a Delaware corporation (the "Corporation").
2. The number of outstanding shares of the Corporation at March 22, 1999,
the date of the approval and adoption of the Agreement and Plan of Merger to
which this certificate is attached by written consent in lieu of a stockholder
meeting, was 100 shares of Common Stock, $.01 par value (the "Common Stock").
3. The principal terms of the Agreement and Plan of Merger to which this
certificate is attached, have been duly approved by the Board of Directors of
the Corporation, was then submitted to the sole stockholder of the Corporation
for approval and adoption by written consent in lieu of a stockholder meeting,
and sole stockholder of the Corporation, holding all of the outstanding shares
of the Corporation, adopted and approved the Agreement and Plan of Merger by
executing and delivering a written consent dated March 22, 1999.
I further declare under penalty of perjury under the laws of the State of
Delaware that the matters set forth in this certificate are true and correct and
of my own knowledge.
Dated: March 22, 1999.
/s/ Xxxxxx Xxxxxx
------------------------
Xxxxxx Xxxxxx,
Secretary of NorthPoint Merger Sub, Inc.
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