EXHIBIT 2.2
FORM OF
AGREEMENT AND PLAN OF MERGER
OF
ZIPLINK, LLC
(a Delaware limited liability company)
AND
ZIPLINK, INC.
(a Delaware corporation)
AGREEMENT AND PLAN OF MERGER (the "Agreement") approved on _________,
1999 pursuant to Section 18-209 of the Delaware Limited Liability Company Act by
ZipLink, LLC, a limited liability company of the State of Delaware, and in
accordance with its Operating Agreement on said date, and approved on ________,
1999 pursuant to Section 264 of the General Corporation Law of the State of
Delaware by ZipLink, Inc., a business corporation of the State of Delaware, and
by resolution adopted by its Board of Directors on said date.
WHEREAS, ZipLink, Inc. is a business corporation of the State of
Delaware with its registered office therein located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of Dover; and
WHEREAS, the total number of shares of stock which ZipLink, Inc. has
authority to issue is 51,000,000, of which 50,000,000 are designated Common
Stock, par value $.001 and 1,000,000 are designated Preferred Stock, par value
$.001; and
WHEREAS, ZipLink, LLC and ZipLink, Inc. and the appropriate managers of
ZipLink, LLC and the Board of Directors of ZipLink, Inc. declare it advisable
and to the advantage, welfare and best interests of said limited liability
company and said corporation and their respective members and stockholders to
merge ZipLink, LLC with and into ZipLink, Inc. pursuant to the provisions of the
Delaware Limited Liability Company Act and pursuant to the provisions of the
General Corporation Law of the State of Delaware upon the terms and conditions
hereinafter set forth:
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, being thereunto duly approved by the
appropriate managers of ZipLink, LLC and duly approved by a resolution adopted
by the Board of Directors of ZipLink, Inc., the Agreement and the terms and
conditions thereof and the mode of carrying the same into effect, together with
any provisions required or permitted to be set forth herein, are hereby
determined and agreed upon as hereinafter in the Agreement set forth.
1. ZipLink, LLC and ZipLink, Inc. shall, pursuant to the provisions of
the Delaware Limited Liability Company Act and pursuant to the provisions of the
General Corporation Law of the State of Delaware, be merged with and into a
single corporation, to wit, ZipLink, Inc., which shall be the surviving company
from and after the effective
EXHIBIT 2.2
time of the merger, and which is sometimes hereinafter referred to as the
"Surviving Corporation", and which shall continue to exist as said Surviving
Corporation under its present name pursuant to the provisions of the General
Corporation Law of the State of Delaware.
The separate existence of ZipLink, LLC, which is hereinafter sometimes referred
to as the `Terminating Company", shall cease at the said effective time in
accordance with the provisions of the Delaware Limited Liability Company Act.
2. The Certificate of Incorporation of Surviving Corporation, as now in
force and effect, shall continue to be the Certificate of Incorporation of
said Surviving Corporation and said Certificate of Incorporation shall
continue in full force and effect until amended and changed in the manner
prescribed by the provisions of the General Corporation Law of the State of
Delaware.
3. The present By-laws of Surviving Corporation will be the By-laws of
Surviving Corporation and will 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.
4. The directors and officers in office of Surviving Corporation at the
effective time of the merger shall be the members of the first Board of
Directors and the first officers of 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 By-laws of Surviving Corporation.
5. All membership interests, and options and warrants to acquire
membership interests, including, without limitation, any options and/or warrants
issued pursuant to the ZipLink, LLC Unit Option Plan shall, from and after the
effective time of the merger, be converted into shares of Common Stock of
Surviving Corporation and options and warrants to acquire shares of Common Stock
of Surviving Corporation, as more particularly described on EXHIBIT A attached
hereto.
6. In the event that the Agreement shall have been fully approved and
adopted upon behalf of Terminating Company in accordance with the provisions of
the Delaware Limited Liability Company Act and upon behalf of Surviving
Corporation in accordance with the provisions of the General Corporation Law of
the State of Delaware, Surviving Corporation and Terminating Company 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.
EXHIBIT 2.2
6. The managers and members of Terminating Company and the Board of
Directors and the proper officers of Surviving Corporation 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 the Agreement or of the merger
herein provided for.
IN WITNESS WHEREOF, this Agreement is hereby signed upon behalf of each
of the parties thereto.
Dated: _______, 1999 ZipLink, LLC
By:
------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Manager
Dated: _______, 1999 ZipLink, Inc.
By:
------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman of the Board
EXHIBIT 2.2
EXHIBIT A
(1) The total number of shares of Common Stock of Surviving Corporation to be
issued with respect to existing Membership Interests (including for this purpose
the Senior Units issuable upon the conversion of Debenture #1 and Debenture #2
(as defined in and pursuant to the Securities Purchase Agreement entered into
during December 1997 between Bay Networks USA, Inc. and ZipLink, LLC) shall be
9,000,000 shares.
(2) The number of shares of Common Stock of Surviving Corporation to be issued
with respect to Debenture #1 shall be 450,000 shares.
(3) The number of shares of Common Stock of Surviving Corporation to be issued
with respect to Debenture #2 shall be based on the actual initial public
offering price for shares of Common Stock of Surviving Corporation.
(4) The number of shares of Common Stock of Surviving Corporation to be issued
with respect to Senior Units shall be equal to: (i) the number of Senior Units
outstanding immediately prior to the consummation of the merger, divided by the
total number of Units and Senior Units outstanding at such time, multiplied by
(ii) the number of shares described in Paragraph (1) above reduced by the number
of shares issued pursuant to Paragraphs (2) and (3) above. The number of shares
issued pursuant to this Paragraph divided by the number of Senior Units may be
referred to hereinafter as the " Senior Unit Conversion Factor".
(5) The number of shares of Common Stock of Surviving Corporation to be issued
with respect to Units shall be equal to: (i) the number of Units outstanding
immediately prior to the consummation of the merger, divided by the total number
of Units and Senior Units outstanding at such time, multiplied by (ii) the
number of shares described in Paragraph (1) above reduced by the number of
shares issued pursuant to Paragraphs (2) and (3) above, and shall be allocated
among the holders of Units as follows:
(a) Those holders of Units who have provided Preferred Capital shall be
issued a number of shares of Common Stock of Surviving Corporation,
with respect to the Preferred Capital, equal to the amount of Preferred
Capital provided divided by $13.00 the estimated initial public
offering price for shares of Common Stock of Surviving Corporation.
(b) The remaining shares of Common Stock of Surviving Corporation to be
issued with respect to Units shall be issued to the holders of Units in
proportion to the number of Units owned. The number of shares issued
pursuant to this Subparagraph divided by the number of Units may be
referred to hereinafter as the "Unit Conversion Factor".
(6) Options and/or warrants to acquire membership interests issued pursuant to
the ZipLink, LLC Unit Option shall be converted to options to acquire shares of
Common Stock of Surviving Corporation as follows:
(a) The number of shares of Common Stock of Surviving Corporation covered
by any such option shall be equal to the number of Units covered by
such option
EXHIBIT 2.2
multiplied by the Unit Conversion Factor.
(b) The purchase price for each share of Common Stock of Surviving
Corporation covered by any such option shall be equal to the purchase
price for each Unit covered by such option divided by the Unit
Conversion Factor.
(7) Options and/or warrants to acquire membership interests other than those
issued pursuant to the ZipLink, LLC Unit Option shall be converted to options to
acquire shares of Common Stock of Surviving Corporation as follows:
(a) The number of shares of Common Stock of Surviving Corporation covered
by any such option shall be equal to the number of Units covered by
such option multiplied by the Senior Unit Conversion Factor.
(b) The purchase price for each share of Common Stock of Surviving
Corporation covered by any such option shall be equal to the purchase
price for each Unit covered by such option divided by the Senior Unit
Conversion Factor.
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