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Exhibit 2.2
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMONG
MPOWER HOLDING CORPORATION,
MPOWER MERGER COMPANY, INC.
AND
MPOWER COMMUNICATIONS CORP.
DATED AS OF APRIL 12, 2001
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TABLE OF CONTENTS
PAGE
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ARTICLE I THE MERGER........................................ 1
SECTION 1.01. The Merger.................................. 1
SECTION 1.02. Effective Time; Closing..................... 1
SECTION 1.03. Effect of the Merger........................ 2
SECTION 1.04. Articles of Incorporation; By-laws.......... 2
SECTION 1.05. Directors and Officers...................... 2
ARTICLE II MERGER CONSIDERATION............................. 2
SECTION 2.01. Merger Consideration........................ 2
SECTION 2.02. Mechanics of Conversion..................... 3
SECTION 2.03. No Further Rights in Company Stock.......... 3
SECTION 2.04. No Liability................................ 3
SECTION 2.05. Withholding Rights.......................... 3
SECTION 2.06. Lost Certificates........................... 4
SECTION 2.07. Company Stock Options....................... 4
SECTION 2.08. Dissenting Shares........................... 5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY... 5
SECTION 3.01. Organization and Qualification.............. 5
SECTION 3.02. Authority Relative to this Agreement........ 5
SECTION 3.03. No Conflict................................. 5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF HOLDING AND
MERGER SUB................................................ 6
SECTION 4.01. Organization and Qualification.............. 6
SECTION 4.02. Authority Relative to this Agreement........ 6
SECTION 4.03. No Conflict................................. 6
ARTICLE V ADDITIONAL AGREEMENTS............................. 6
SECTION 5.01. Company Shareholders' Meeting............... 6
SECTION 5.02. Further Action; Consents; Filings........... 6
SECTION 5.03. Further Action to Authorize and Approve
Holding Stock.......................................... 7
ARTICLE VI TAX MATTERS...................................... 7
SECTION 6.01. Tax Treatment............................... 7
ARTICLE VII CONDITIONS TO THE MERGER........................ 7
SECTION 7.01. Conditions to the Obligations of Each
Party.................................................. 7
ARTICLE VIII TERMINATION AND AMENDMENT...................... 8
SECTION 8.01. Termination................................. 8
SECTION 8.02. Amendment................................... 8
ARTICLE IX GENERAL PROVISIONS............................... 8
SECTION 9.01. Notices..................................... 8
SECTION 9.02. Certain Definitions......................... 8
SECTION 9.03. Severability................................ 9
SECTION 9.04. Assignment; Binding Effect; Benefit......... 9
SECTION 9.05. Specific Performance........................ 9
SECTION 9.06. Governing Law; Forum........................ 9
SECTION 9.07. Headings.................................... 10
SECTION 9.08. Counterparts................................ 10
SECTION 9.09. Entire Agreement............................ 10
SECTION 9.10. Waiver...................................... 10
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AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of April 12,
2001(this "Agreement"), among MPOWER HOLDING CORPORATION, a Delaware corporation
("Holding"), MPOWER MERGER COMPANY, INC., a Delaware corporation and a wholly
owned subsidiary of Holding ("Merger Sub"), and MPOWER COMMUNICATIONS CORP., a
Nevada corporation (the "Company").
W I T N E S S E T H
WHEREAS, Holding, Merger Sub and the Company entered into an Agreement and
Plan of Merger dated as of March 5, 2001 (the "Original Merger Agreement"), and
they now desire to amend and restate the Original Merger Agreement to provide,
among other things, that at the Effective Time (as defined in Section 2.01), by
virtue of the Merger (as defined below) and without any action on the part of
Holding, Merger Sub, the Company or the holders of any securities of Holding,
Merger Sub or the Company, of each outstanding share of capital stock of the
Company shall be converted into shares of Holding, with the same terms,
including the same powers, rights, preferences, limitations, qualifications and
restrictions, as the respective shares of the Company's capital stock (it being
understood that all references herein to this "Agreement" refer to the Original
Merger Agreement as amended and restated hereby and that all references herein
to the date hereof or the date of this Agreement refer to April 12, 2001);
WHEREAS, upon the terms and subject to the conditions of this Agreement and
in accordance with the General Corporation Law of the State of Delaware (the
"DGCL") and the Nevada Revised Statutes ("Nevada Law"), Holding and the Company
will enter into a restructuring transaction pursuant to which Merger Sub will
merge with and into the Company (the "Merger");
WHEREAS, the Board of Directors of each of the Company and Holding (i) has
determined that the Merger is fair to, advisable to and in the best interests of
the Company and its shareholders and has approved this Agreement, the Merger and
the other transactions contemplated by this Agreement and (ii) will recommend
the approval of this Agreement by the shareholders of the Company; and
WHEREAS, certain capitalized terms used in this Agreement are defined in
Section 9.02 of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01. The Merger. Upon the terms and subject to the conditions set
forth in Article VII, and in accordance with the DGCL and Nevada Law, at the
Effective Time (as defined in Section 1.02), Merger Sub shall be merged with and
into the Company. As a result of the Merger, the separate corporate existence of
Merger Sub shall cease and the Company shall continue as the surviving
corporation of the Merger (the "Surviving Corporation").
SECTION 1.02. Effective Time; Closing. As promptly as practicable
following the satisfaction or, if permissible, waiver of the conditions set
forth in Article VII (or such other date as may be agreed upon by each of the
parties hereto), the parties hereto shall cause the Merger to be consummated by
filing (i) the articles of merger (the "Articles of Merger") with the Secretary
of State of the State of Nevada, in such form as is required by, and executed in
accordance with, the relevant provisions of Nevada Law and (ii) a certificate of
merger (the "Certificate of Merger") with the Secretary of State of the State of
Delaware, in such form as is required by, and executed in accordance with, the
relevant provisions of the DGCL. The term "Effective Time" means the date and
time of the filing of the Articles of Merger with the Secretary of State of the
State of Nevada and the Certificate of Merger with the Secretary of State of the
State of Delaware (or such later time as may be agreed upon by each of the
parties hereto and specified in the Articles of Merger and Certificate of
Merger). Immediately prior to the filing of the Articles of Merger and
Certificate of Merger,
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a closing (the "Closing") will be held at the offices of Shearman & Sterling,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other place as the
parties may agree). The date on which the Closing shall occur is referred to
herein as the "Closing Date".
SECTION 1.03. Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of Nevada Law and
the DGCL. Without limiting the generality of the foregoing, and subject thereto,
at the Effective Time all the property, rights, privileges, powers and
franchises of each of the Company and Merger Sub shall vest in the Surviving
Corporation, and all debts, liabilities, obligations, restrictions, disabilities
and duties of each of the Company and Merger Sub shall become the debts,
liabilities, obligations, restrictions, disabilities and duties of the Surviving
Corporation.
SECTION 1.04. Articles of Incorporation; By-laws. (a) At the Effective
Time, the Articles of Incorporation of the Surviving Corporation shall be
amended to contain only the provisions of the Certificate of Incorporation of
Merger Sub, as in effect immediately prior to the Effective Time, and such
amended Articles of Incorporation shall be the Articles of Incorporation of the
Surviving Corporation until thereafter amended as provided by law and such
Articles of Incorporation; provided, however, that Article I of the Articles of
Incorporation of the Surviving Corporation shall be amended to read in its
entirety as follows:
The name of the corporation is: Mpower Communications Corp.
(b) At the Effective Time, the By-laws of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the By-laws of the Surviving
Corporation until thereafter amended as provided by law, the Articles of
Incorporation of the Surviving Corporation and such By-laws.
SECTION 1.05. Directors and Officers. The directors of Merger Sub
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Articles of
Incorporation and By-laws of the Surviving Corporation, and the officers of
Merger Sub immediately prior to the Effective Time shall be the initial officers
of the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
ARTICLE II
MERGER CONSIDERATION
SECTION 2.01. Merger Consideration. (a) At the Effective Time, by virtue
of the Merger and without any action on the part of Holding, Merger Sub, the
Company or the holders of any of the following securities, pursuant to this
Agreement, the Articles of Merger, the Certificate of Merger, the DGCL and
Nevada Law:
(i) each share, or fraction thereof, of common stock, par value $.001
per share, of the Company ("Company Common Stock") issued and outstanding
immediately prior to the Effective Time (other than any shares of Company
Common Stock to be cancelled pursuant to Section 2.01(a)(iv)) shall be
deemed converted into one share, or fraction thereof, of common stock, par
value $.001 per share, of Holding ("Holding Common Stock") (the "Common
Stock Merger Consideration");
(ii) each share, or fraction thereof, of 10% Series C Convertible
Preferred Stock of the Company ("Company Series C Stock") issued and
outstanding immediately prior to the Effective Time (other than any share
of Company Series C Stock to be cancelled pursuant to Section 2.01(a)(iv))
and any Dissenting Shares (as defined in Section 2.08)) shall be deemed
converted into one share, or fraction thereof, of 10% Series C Convertible
Preferred Stock ("Holding Series C Stock") of Holding, which shall have the
same terms (including, but not limited to, all powers, rights, preferences,
limitations, qualifications, restrictions or designations) as a share, or
fraction thereof, of the Company Series C Stock (the "Series C Merger
Consideration");
(iii) each share, or fraction thereof, of Series 7.25% Series D
Convertible Preferred Stock of the Company ("Company Series D Stock"; and,
together with the Company Series C Stock, the "Company Preferred Stock")
issued and outstanding immediately prior to the Effective Time (other than
any share
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of Company Series D Stock to be cancelled pursuant to Section 2.01(a)(iv))
shall be converted into one share, or fraction thereof, of 7.25% Series D
Convertible Preferred Stock of Holding ("Holding Series D Stock; and,
together with the Holding Series C Stock, the "Holding Preferred Stock",
and together with the Holding Common Stock, the "Holding Stock"), which
shall have the same terms (including, but not limited to, all powers,
rights, preferences, limitations, qualifications, restrictions or
designations) as a share, or fraction thereof, of the Company Series D
Stock (the "Series D Merger Consideration");
(iv) each share, or fraction thereof, of Company Common Stock and
Company Preferred Stock (collectively, "Company Stock") held in the
treasury of the Company immediately prior to the Effective Time shall be
cancelled and extinguished without any conversion thereof and no payment or
distribution shall be made with respect thereto;
(v) each share of common stock, par value $0.01 per share, of Merger
Sub issued and outstanding immediately prior to the Effective Time shall be
converted into and exchanged for one validly issued, fully paid and
nonassessable share of common stock, par value $0.01 per share, of the
Surviving Corporation; and
(vi) each share of Holding Common Stock issued and outstanding
immediately prior to the Effective Time shall be cancelled and extinguished
and no payment or distribution shall be made with respect thereto.
(b) As used in this Agreement, the following terms shall have the following
meanings:
(i) "Aggregate Merger Consideration" means the Common Stock Merger
Consideration, as defined in Section 2.01(a)(i) herein, plus the Preferred
Stock Merger Consideration.
(ii) "Preferred Stock Merger Consideration" means the sum of the
Series C Merger Consideration and the Series D Merger Consideration.
(iii) "Company Share Certificates" means the certificates which
immediately prior to the Effective Time represent outstanding shares of
Company Stock.
SECTION 2.02. Mechanics of Conversion. From and after the Effective Time,
any holder of Company Stock may request that the Company issue certificates
representing Holding Stock in exchange for Company Share Certificates. Such
holder shall surrender the Company Share Certificates, duly endorsed, at the
office of Holding or of Continental Stock Transfer and Trust Company, the
transfer agent for Holding (the "Transfer Agent"), and shall give written notice
to Holding or the Transfer Agent, as the case may be, at its principal corporate
office, of the election to exchange the same and shall state therein the name or
names in which the certificate or certificates representing Holding Stock are to
be issued. Holding shall, as soon as practicable thereafter, issue and deliver
at such office to such holder of Company Stock, or to the nominee or nominees of
such holder, a certificate or certificates representing Holding Stock for the
number of shares of Holding Stock to which such holder is entitled pursuant to
Section 2.01 hereof. In the event that the certificate representing Holding
Stock is to be issued to a person other than the person in whose name the
Company Share Certificates so exchanged is registered, such Company Share
Certificates shall be accompanied by all documents required to evidence and
effect such transfer and evidence that any applicable stock transfer taxes have
bee paid.
SECTION 2.03. No Further Rights in Company Stock. All Holding Stock issued
upon conversion of shares of Company Stock in accordance with the terms hereof
shall be deemed to have been issued in full satisfaction of all rights
pertaining to such shares of Company Stock.
SECTION 2.04. No Liability. Neither Holding nor the Surviving Corporation
shall be liable to any holder of shares of Company Stock for any such shares of
Company Stock (or dividends or distributions with respect thereto) or cash
properly and legally delivered to a public official pursuant to any abandoned
property, escheat or similar law.
SECTION 2.05. Withholding Rights. Each of the Surviving Corporation and
Holding shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of
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shares of Company Stock such amounts as it is required to deduct and withhold
with respect to the making of such payment under the Internal Revenue Code of
1986 (the "Code"), or any provision of state, local or foreign tax law. To the
extent that amounts are so withheld by the Surviving Corporation or Holding, as
the case may be, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the shares of Company Stock in
respect of which such deduction and withholding was made by the Surviving
Corporation or Holding, as the case may be.
SECTION 2.06. Lost Certificates. If any Company Share Certificate shall
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming such Company Share Certificate to be lost, stolen or
destroyed and, if required by the Surviving Corporation, the posting by such
person of a bond, in such reasonable amount as the Surviving Corporation may
direct, as indemnity against any claim that may be made against it with respect
to such Company Share Certificate, Holding shall issue in exchange for such
lost, stolen or destroyed Company Share Certificate, the applicable Merger
Consideration to which such person is entitled pursuant to the provisions of
this Article II.
SECTION 2.07. Company Stock Options. All options (the "Company Stock
Options") outstanding, whether or not exercisable and whether or not vested, at
the Effective Time under the Company's Stock Option Plan and the Primary Network
Holdings Inc. Stock Option Plan (collectively, the "Company Stock Option
Plans"), shall remain outstanding following the Effective Time. At the Effective
Time, the Company Stock Options shall, by virtue of the Merger and without any
further action on the part of the Company or the holder thereof, be assumed by
Holding in such manner that Holding (i) is a corporation "assuming a stock
option in a transaction to which Section 424(a) applies" within the meaning of
Section 424 of the Code and the regulations thereunder or (ii) to the extent
that Section 424 of the Code does not apply to any such Company Stock Options,
would be such a corporation were Section 424 of the Code applicable to such
Company Stock Options. From and after the Effective Time, all references to the
Company in the Company Stock Option Plans and the applicable stock option
agreements issued thereunder shall be deemed to refer to Holding, which shall
have assumed the Company Stock Option Plans as of the Effective Time by virtue
of this Agreement and without any further action. Each Company Stock Option
assumed by Holding (each, a "Substitute Option") shall be exercisable upon the
same terms and conditions as under the Company Stock Option Plans and the
applicable option agreement issued thereunder, except that (A) each such
Substitute Option shall be exercisable for, and represent the right to acquire,
that number of shares of Holding Common Stock equal to the number of shares of
Company Common Stock subject to such Company Stock Option; and (B) the option
price per share of Holding Common Stock shall be an amount equal to the option
price per share of Company Common Stock subject to such Company Stock Option in
effect immediately prior to the Effective Time. Such Substitute Option shall
otherwise be subject to the same terms and conditions as such Company Stock
Option.
(b) As soon as practicable after the Effective Time, Holding shall deliver
to each holder of an outstanding Company Stock Option an appropriate notice
setting forth such holder's rights pursuant thereto and such Company Stock
Option shall continue in effect on the same terms and conditions (including any
antidilution provisions, and subject to the adjustments required by this Section
2.07 after giving effect to the Merger). Holding shall comply with the terms of
all such Company Stock Options and ensure, to the extent required by, and
subject to the provisions of, the Company Stock Option Plans, that Company Stock
Options which qualified as incentive stock options under Section 422 of the Code
prior to the Effective Time continue to qualify as incentive stock options after
the Effective Time. Holding shall take all corporate action necessary to reserve
for issuance a sufficient number of shares of Holding Common Stock for delivery
upon exercise of Substitute Options pursuant to the terms set forth in this
Section 2.07. As soon as practicable after the Effective Time, the shares of
Holding Common Stock subject to Company Stock Options will be covered by an
effective registration statement on Form S-8 (or any successor form) or another
appropriate form, and Holding shall use its reasonable efforts to maintain the
effectiveness of such registration statement or registration statements for so
long as Substitute Options remain outstanding. In addition, Holding shall use
all reasonable efforts to cause the shares of Holding Common Stock subject to
Company Stock Options to be listed on The Nasdaq National Market System and such
other exchanges as Holding shall determine.
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SECTION 2.08. Dissenting Shares. Notwithstanding any provision of this
Agreement to the contrary, shares of Company Series C Stock that are outstanding
immediately prior to the Effective Time and which are held by shareholders who
have exercised and perfected appraisal rights for such shares of Company Series
C Stock in accordance with Nevada Law and who have not otherwise waived such
rights (collectively, the "Dissenting Shares") shall not be converted into the
consideration provided by Sections 2.01 and 2.07. Such shareholders shall be
entitled to receive payment of the appraised value of such shares of Company
Series C Stock held by them in accordance with Nevada Law, except that all
Dissenting Shares held by shareholders who shall have failed to perfect or who
effectively shall have withdrawn or lost their rights to appraisal of such
shares of Company Series C Stock under Nevada Law shall thereupon be deemed to
have been converted into, and to have become exchangeable for, as of the
Effective Time, the consideration provided in Section 2.01 and 2.07.
(b) The Company shall give Holding (i) prompt notice of any demands for
appraisal received by the Company, withdrawals of such demands, and any other
related instruments served pursuant to Nevada Law and received by the Company
and (ii) the opportunity to direct all negotiations and proceedings with respect
to demands for appraisal under Nevada Law. The Company shall not, except with
the prior written consent of Holding, make any payment with respect to any
demands for appraisal or offer to settle or settle any such demands. Holders of
Dissenting Shares shall not be entitled to receive their pro rata portion of the
Aggregate Merger Consideration and such pro rata portion of the Aggregate Merger
Consideration shall be retained by Holding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As an inducement to Holding to enter into this Agreement, the Company
hereby represents and warrants to Holding and Merger Sub that:
SECTION 3.01. Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada and has all necessary corporate power and authority to enter
into this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby.
SECTION 3.02. Authority Relative to this Agreement. The execution and
delivery of this Agreement by the Company, the performance by the Company of its
obligations hereunder and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary corporate action,
and no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby
(other than, with respect to the Merger, the approval and adoption of this
Agreement by the holders of a majority of the then-outstanding shares of Company
Common Stock and Company Series C Stock, voting together as a class, and the
filing and recordation of appropriate merger documents as required by Nevada Law
and the DGCL). This Agreement has been duly executed and delivered by the
Company and (assuming due authorization, execution and delivery by the other
parties hereto and subject to the proviso of the preceding sentence) this
Agreement constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding therefor may be
brought.
SECTION 3.03. No Conflict. The execution, delivery and performance of this
Agreement by the Company do not and will not violate, conflict with or result in
the breach of any provision of the Articles of Incorporation or By-laws (or
similar organization documents) of the Company.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF HOLDING AND MERGER SUB
As an inducement to the Company entering into this Agreement, Holding and
Merger Sub hereby jointly and severally represent and warrant to the Company
that:
SECTION 4.01. Organization and Qualification. Each of Holding and Merger
Sub is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all necessary corporate power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby.
SECTION 4.02. Authority Relative to this Agreement. The execution and
delivery of this Agreement by Holding and Merger Sub, the performance by each of
Holding and Merger Sub of its obligations hereunder and the consummation by each
of Holding and Merger Sub of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of each of Holding and
Merger Sub, and no other corporate proceedings on the part of either Holding or
Merger Sub are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby (other than, with respect to the Merger, the
filing and recordation of appropriate merger documents as required by Nevada Law
and the DGCL). This Agreement has been duly executed and delivered by Holding
and Merger Sub and (assuming due authorization, execution and delivery by the
other parties hereto) this Agreement constitutes a legal, valid and binding
obligation of Holding and Merger Sub enforceable against each of Holding and
Merger Sub in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
SECTION 4.03. No Conflict. The execution, delivery and performance of this
Agreement by Holding and Merger Sub does not and will not violate, conflict with
or result in the breach of any provision of the Certificate of Incorporation or
By-laws of Holding or Merger Sub.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Company Shareholders' Meeting. (a) The Company shall (i) in
accordance with Nevada Law and the Company's Articles of Incorporation and
By-laws, duly call, give notice of, convene and hold a meeting of the Company
shareholders (the "Company Shareholders' Meeting") for the purpose of voting
upon the approval of the Merger and this Agreement and (ii) recommend that the
shareholders of the Company vote in favor of the approval of the Merger and this
Agreement. The Company shall use best efforts to hold the Company Shareholders'
Meeting as soon as practicable after the date hereof.
SECTION 5.02. Further Action; Consents; Filings. Upon the terms and
subject to the conditions hereof, each of the parties hereto shall use its
reasonable best efforts to (i) take, or cause to be taken, all appropriate
action and do, or cause to be done, all things necessary, proper or advisable
under applicable law or otherwise to consummate and make effective the Merger
and the other transactions contemplated by this Agreement (the "Transactions"),
(ii) obtain from any United States federal, state, county or local or any
foreign government, governmental, regulatory or administrative authority,
agency, instrumentality or commission or any court, tribunal or judicial or
arbitral body (a "Governmental Authority"), as the case may be, consents,
licenses, permits, waivers, approvals, filings under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), authorizations
or orders required to be obtained or made by Holding or the Company or any of
their subsidiaries in connection with the authorization, execution and delivery
of this Agreement and the consummation of the Transactions and (iii) make all
necessary filings, including the filings of proxy statements or registration
statements with respect to the transactions contemplated herein, and thereafter
make any other required submissions, with respect to this Agreement or the
Transactions required under applicable foreign or domestic statutes, laws,
ordinances, regulations, rules, codes,
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executive orders, injunctions, judgments, decrees or other orders. The parties
hereto shall cooperate with each other in connection with the making of all such
filings, including by providing copies of all such documents to the nonfiling
party and its advisors prior to filing and, if requested, by accepting all
reasonable additions, deletions or changes suggested in connection therewith.
SECTION 5.03. Further Action to Authorize and Approve Holding
Stock. (a) Prior to the Effective Time, the Company, as sole stockholder of
Holding, and Holding shall cause amendments and certificates of designations to
Holding's Certificate of Incorporation to be duly authorized and filed with the
Secretary of State of the State of Delaware in order to authorize the Holding
Stock.
(b) Prior to the Effective Time, the board of directors of Holding shall
adopt a rights plan with the same terms as the Rights Plan adopted by Mpower in
December 2000 and authorize 100,000 shares of Series E Preferred Stock of
Holding, which shall have the same terms (including, but not limited to, all
powers, rights, preferences, limitations, qualifications, restrictions or
designations) as the Series E Preferred Stock of the Company, and promptly after
the Effective Time, the board of directors of Holding will declare a dividend on
the shares of Holding Company Stock, comprised of a right issued pursuant to
such rights plan, such that the holders of Holding Common Stock will have the
same rights with respect to Holding as they had as holders of Company Common
Stock with respect to the Company.
ARTICLE VI
TAX MATTERS
SECTION 6.01. Tax Treatment. The parties intend that the Merger shall be
treated for federal and state income tax purposes as a tax-free exchange to
which Section 351(a) of the Code applies.
ARTICLE VII
CONDITIONS TO THE MERGER
SECTION 7.01. Conditions to the Obligations of Each Party. The obligations
of the Company, Holding and Merger Sub to consummate the Merger are subject to
the satisfaction or waiver (where permissible) of the following conditions:
(a) this Agreement shall have been approved and adopted by the
requisite affirmative vote of the shareholders of the Company in accordance
with Nevada Law and the Company's Articles of Incorporation;
(b) no Governmental Authority or court of competent jurisdiction
located or having jurisdiction in the United States shall have enacted,
issued, promulgated, enforced or entered any law, rule, regulation,
judgment, decree, executive order or award which is then in effect and has
the effect of making the Merger illegal or otherwise prohibiting
consummation of the Merger;
(c) any waiting period (and any extension thereof) applicable to the
consummation of the Merger under the HSR Act shall have expired or been
terminated;
(d) Holding Common Stock and Holding Series D Stock shall have been
approved for trading on the Nasdaq National Market System;
(e) Xxxxx Xxxxxxx LLP shall have delivered an opinion to the parties
hereto at Closing substantially similar in form and substance to their
opinion delivered in connection with the initial filing of this Agreement
with the Securities and Exchange Commission; and
(f) Amendments and certificates of designations to Holding's
Certificate of Incorporation shall have been duly authorized and filed with
the Secretary of State of the State of Delaware in order to authorize the
Holding Stock and the Series E Preferred Stock of Holding, and Holding
shall have adopted a rights plan as described in Section 5.03(b) hereof.
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ARTICLE VIII
TERMINATION AND AMENDMENT
SECTION 8.01. Termination. This Agreement may be terminated and the
Transactions may be abandoned at any time prior to the Effective Time,
notwithstanding any requisite approval and adoption of this Agreement and the
transactions contemplated by this Agreement by the mutual written consent duly
authorized by the Board of Directors of each of Holding and the Company;
SECTION 8.02. Amendment. This Agreement may be amended and restated by the
agreement of the authorized officers of the Company and Holding, respectively,
so long as any such amendment does not change any terms of the proposed merger
to the detriment of the Company's stockholders.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, facsimile, telegram or telex or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at 000
Xxxxx'x Xxxxx, Xxxxxxxxx, X.X., 00000.
SECTION 9.02. Certain Definitions. (a) As used in this Agreement, the
following terms shall have the following meanings:
(i) "business day" means any day on which banks are not required or
authorized to close in New York, Nevada or Delaware.
(ii) "person" means an individual, corporation, partnership, limited
partnership, syndicate, person (including, without limitation, a "person"
as defined in section 13(d)(3) of the Exchange Act), trust, association or
entity or government, political subdivision, agency or instrumentality of a
government.
(iii) "subsidiary" or "subsidiaries" of any person means any
corporation, partnership, joint venture or other legal entity of which such
person (either alone or through or together with any other subsidiary)
owns, directly or indirectly, more than 50% of the stock or other equity
interests, the holders of which are generally entitled to vote for the
election of the board of directors or other governing body of such
corporation or other legal entity.
(b) The following terms shall have the meanings defined for such terms in
the Sections of this Agreement set forth below:
TERM SECTION
---- -------------------
Agreement................................................... Preamble
Aggregate Merger Consideration.............................. 2.01(b)(i)
Articles of Merger.......................................... 1.02
business day................................................ 9.02(a)
Certificate of Merger....................................... 1.02
Closing..................................................... 1.02
Closing Date................................................ 1.02
Code........................................................ 2.05
Company..................................................... Preamble
Company Common Stock........................................ 2.01(a)(i)
Company Preferred Stock..................................... 2.01(a)(iii)
Company Series C Stock...................................... 2.01(a)(ii)
Company Series D Stock...................................... 2.01(a)(iii)
Company Shareholders' Meeting............................... 5.01
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TERM SECTION
---- -------------------
Company Share Certificates.................................. 2.01(b)(iii)
Common Stock Merger Consideration........................... 2.01(a)(i)
Company Stock............................................... 2.01(a)(iv)
Company Stock Option........................................ 2.07(a)
Company Stock Option Plans.................................. 2.07(a)
DGCL........................................................ Recitals
Dissenting Shares........................................... 2.08(a)
Effective Time.............................................. 1.02
Holding..................................................... Preamble
Holding Common Stock........................................ Section 2.01(a)(i)
Holding Preferred Stock..................................... Section
2.01(a)(iii)
Holding Series C Stock...................................... Section 2.01(a)(ii)
Holding Series D Stock...................................... Section
2.01(a)(iii)
Holding Stock............................................... Section
2.01(a)(iii)
Merger...................................................... Recitals
Merger Sub.................................................. Preamble
Nevada Law.................................................. Recitals
Original Merger Agreement................................... Recitals
Preferred Stock Merger Consideration........................ 2.01(b)(ii)
Series C Merger Consideration............................... 2.01(a)(ii)
Series D Merger Consideration............................... 2.01(a)(iii)
Substitute Option........................................... 2.07(a)
Surviving Corporation....................................... 1.01
Transfer Agent.............................................. 2.02
SECTION 9.03. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect as long as the economic or legal
substance of the transactions contemplated by this Agreement 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 a mutually
acceptable manner in order that the transactions contemplated by this Agreement
be consummated as originally contemplated to the fullest extent possible.
SECTION 9.04. Assignment; Binding Effect; Benefit. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 9.05. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 9.06. Governing Law; Forum. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed in that state and without regard to
any applicable conflicts of law. Each of the parties hereto submits to the
exclusive jurisdiction of the state and federal courts of the United States
located in the City of Xxx Xxxx,
0
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Xxxxx xx Xxx Xxxx with respect to any claim or cause of action arising out of
this Agreement or the transactions contemplated hereby.
SECTION 9.07. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 9.08. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
SECTION 9.09. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with respect
thereto. No addition to or modification of any provision of this Agreement shall
be binding upon any party hereto unless made in writing and signed by all
parties hereto.
SECTION 9.10. Waiver. At any time prior to the Effective Time, any party
hereto may (a) extend the time for the performance of any obligation or other
act of any other party hereto, (b) waive any inaccuracy in the representations
and warranties contained herein or in any document delivered pursuant hereto,
and (c) waive compliance with any agreement or condition contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
IN WITNESS WHEREOF, each of Holding, Merger Sub and the Company has
executed or has caused this Agreement to be executed by its respective officers
thereunto duly authorized as of the date first written above.
MPOWER HOLDING CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President,
General Counsel and
Secretary
MPOWER MERGER COMPANY, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President,
General Counsel and
Secretary
MPOWER COMMUNICATIONS CORP.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President,
General Counsel and
Secretary
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