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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
MPOWER HOLDING CORPORATION,
MPOWER MERGER COMPANY, INC.
AND
MPOWER COMMUNICATIONS CORP.
DATED AS OF MARCH 5, 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; EXCHANGE OF
CERTIFICATES.............................................. 2
SECTION 2.01. Merger Consideration........................ 2
SECTION 2.02. Exchange of Stock Certificates.............. 3
SECTION 2.03. Company Stock Options....................... 4
SECTION 2.04. 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........ 6
SECTION 3.03. No Conflict................................. 6
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
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, AMENDMENT AND WAIVER............. 7
SECTION 8.01. Termination................................. 7
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.................................... 9
SECTION 9.08. Counterparts................................ 10
SECTION 9.09. Entire Agreement............................ 10
SECTION 9.10. Waiver...................................... 10
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AGREEMENT AND PLAN OF MERGER, dated as of March 5, 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, 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 VIII, 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 VIII (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, 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.
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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.
(a) 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; EXCHANGE OF CERTIFICATES
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 the right to receive one share, or fraction thereof,
of common stock, par value $.001 per share, of Holding ("Holding Common
Stock"), upon surrender of the certificates representing Company Common
Stock, in the manner provided in Section 2.02 (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 2.04)) shall be deemed
converted into the right to receive one share, or fraction thereof, of 10%
Series C Convertible Preferred Stock ("Holding Series C Stock") of Holding,
upon surrender of the certificates representing Company Series C Stock in
the manner provided in Section 2.02, 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% D Convertible
Preferred Stock ("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 of Company
Series D Stock to be cancelled pursuant to Section 2.01(a)(iv)) shall be
converted into the right to receive 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"), upon surrender of the certificates representing Company
Series D Stock in the manner provided in Section 2.02, 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");
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(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.
SECTION 2.02. Exchange of Stock Certificates. (a) Exchange
Procedures. From and after the Effective Time, a bank or trust company to be
designated by Holding shall act as exchange agent (the "Exchange Agent") in
effecting the exchange of the Aggregate Merger Consideration for certificates
(the "Company Share Certificates") which immediately prior to the Effective Time
represented outstanding shares of Company Stock and which were converted into
the right to receive the Aggregate Merger Consideration pursuant to Section
2.01. Promptly after the Effective Time, but in no event later than 15 business
days following the Effective Time, Holding and the Exchange Agent shall mail to
each record holder of Company Share Certificates a letter of transmittal (the
"Letter of Transmittal") in a form approved by Holding and the Company and
instructions for use in surrendering such Company Share Certificates and
receiving the applicable Merger Consideration pursuant to Section 2.01 therefor.
Promptly after the Effective Time, but in no event later than 20 business days
following the Effective Time, Holding shall cause to be deposited in trust with
the Exchange Agent the Aggregate Merger Consideration.
Upon the surrender of each Company Share Certificate for cancellation to
the Exchange Agent, together with a properly completed Letter of Transmittal,
and such other documents as may reasonably be required by Holding:
(i) the holder of such Company Share Certificate shall be entitled to
receive in exchange therefor a certificate representing the Aggregate
Merger Consideration applicable to such Company Share Certificate; and
(ii) the Company Share Certificate so surrendered shall forthwith be
cancelled.
In the event of a transfer of ownership of shares of Company Stock that is
not registered in the transfer records of the Company, the applicable Aggregate
Merger Consideration may be issued to a person other than the person in whose
name the Company Share Certificate so surrendered is registered if the Company
Share Certificate representing such shares of Company Common Stock is presented
to Holding, accompanied by all documents required to evidence and effect such
transfer and evidence that any applicable stock transfer taxes have been paid.
Until surrendered as contemplated by this Article II, each Company Share
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive upon surrender the applicable Aggregate Merger
Consideration with respect to the shares of Company Stock formerly represented
thereby to which such holder is entitled pursuant to Section 2.01.
(b) Distributions with Respect to Unexchanged Holding Shares. No dividends
or other distributions declared or made after the Effective Time with respect to
Holding Common Stock or Holding Preferred Stock
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(collectively, "Holding Stock") comprising part of the Aggregate Merger
Consideration with a record date after the Effective Time shall be paid to the
holder of any unsurrendered Company Share Certificate with respect to the
Holding Stock represented thereby, until the holder of such Company Share
Certificate shall surrender such Company Share Certificate in accordance with
this Section 2.03.
(c) 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.
(d) 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.
(e) 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 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.
(f) 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.
(g) Return of Holding Shares. Promptly following the end of the third full
calendar month after the Effective Time, the Exchange Agent shall return to the
Surviving Corporation all of the remaining certificates representing shares of
Holding Stock and the Exchange Agent's duties shall terminate. Thereafter, upon
the surrender of a Company Share Certificate to the Surviving Corporation,
together with such other documents as may reasonably be required by the
Surviving Corporation, and subject to applicable abandoned property, escheat and
similar laws, the holder of such Company Share Certificate shall be entitled to
receive in exchange therefor the applicable Merger Consideration without any
interest thereon.
SECTION 2.03. Company Stock Options. (a) 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 (the "Company Stock
Option Plan"), 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 Plan 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 Plan 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
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option price per share of Company Common Stock subject to such Company Stock
Option in effect immediately prior to the Effective Time (the option price per
share, as so determined, being rounded upward to the nearest full cent). 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
2.04 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 Plan, 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 2.04. 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.
SECTION 2.04. Dissenting Shares. (a) Notwithstanding any provision of this
Agreement to the contrary, shares of Company 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 Stock
in accordance with Nevada Law and who have not otherwise waived such rights
(collectively, the "Dissenting Shares") shall not be converted into or represent
the right to receive the consideration provided by Sections 2.01 and 2.03. Such
shareholders shall be entitled to receive payment of the appraised value of such
shares of Company 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 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 2.03.
(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.
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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 requisite action on the
part of the Company and its stockholders, in accordance with Nevada Law and its
Articles of Incorporation. This Agreement has been duly executed and delivered
by the Company and (assuming due authorization, execution and delivery by the
other parties hereto) 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.
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 requisite action on the part of each of Holding and Merger
Sub, in accordance with the DGCL and their respective Certificates of
Incorporation. 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
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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, 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.
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; and
(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.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
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
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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;
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
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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........................................................ 2.02(e)
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 Share Certificates.................................. 2.02(a)
Company Shareholders Meeting................................ 5.01
Common Stock Merger Consideration........................... 2.01(a)(i)
Company Stock............................................... 2.01(a)(iv)
Company Stock Option........................................ 2.03(a)
Company Stock Option Plan................................... 2.03(a)
DGCL........................................................ Recitals
Dissenting Shares........................................... 2.04(a)
Effective Time.............................................. 1.02
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TERM SECTION
---- -----------------
Exchange Agent.............................................. 2.02(a)
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 2.02(b)
Letter of Transmittal....................................... 2.02(a)
Merger...................................................... Recitals
Merger Sub.................................................. Preamble
Nevada Law.................................................. Recitals
Preferred Stock Merger Consideration........................ 2.01(b)(ii)
Series C Merger Consideration............................... 2.01(a)(iii)
Series D Merger Consideration............................... 2.01(a)(iv)
Substitute Option........................................... 2.03(a)
Surviving Corporation....................................... 1.01
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 New York, State of New York 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.
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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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