Exhibit 10.4
RESTRUCTURING AND CONTRIBUTION AGREEMENT
RESTRUCTURING AND CONTRIBUTION AGREEMENT, dated as of ______________, 1998,
by and among FiveCom, Inc., a Massachusetts corporation ("FiveCom MA"),
NorthEast Optic Network, Inc., a Delaware corporation ("NEON"), FiveCom LLC, a
Massachusetts limited liability company ("FiveCom LLC"), FiveCom of Maine LLC, a
Massachusetts limited liability company ("FM LLC"), FiveCom of Maine, Inc., a
Delaware corporation ("FM Inc."), NECOM LLC, a Massachusetts limited liability
company ("NE LLC"), Mode 1 Communications, Inc., a Connecticut corporation
("Mode 1"), MaineCom Services, a Maine corporation ("MaineCom"), Central Maine
Power Company, an investor-owned utility and Maine corporation ("CMP"), Xxxxxx
Xxxxxxxxxx and Xxxxxxx Xxxxx.
RECITALS:
1. The members of FiveCom LLC (other than FiveCom MA), and the members of
FM LLC and NE LLC (other than FiveCom LLC), desire to assign their membership
interests in such limited liability companies to FiveCom MA for shares of the
Series B Convertible Preferred Stock, $.05 par value per share (the "Series B
Stock"), of FiveCom MA;
2. FiveCom LLC desires to merge with and into FiveCom MA, FiveCom MA
desires that FiveCom LLC merge with and into FiveCom MA, and the members of
FiveCom LLC and the Board of Directors of FiveCom MA have adopted or will adopt
pursuant hereto, resolutions approving this Agreement and such merger pursuant
to the terms hereof;
3. NE LLC desires to merge with and into FiveCom MA, FiveCom MA desires
that NE LLC merge with and into FiveCom MA, and the members of NE LLC and the
Board of Directors of FiveCom MA have adopted, or will adopt pursuant hereto,
resolutions approving this Agreement and such merger pursuant to the terms
hereof;
4. FM LLC desires to merge with and into FM Inc., FM Inc. desires that FM
LLC merge with and into FM Inc., and the members of FM LLC and the Board of
Directors of FM Inc. have adopted, or will adopt pursuant hereto, resolutions
approving this Agreement and such merger pursuant to the terms hereof;
5. FiveCom MA is a corporation duly organized and existing under the laws
of the Commonwealth of Massachusetts and is authorized to issue (i) 5,000,000
shares of Common Stock, $.05 par value per share ("Common Stock"), of which
115,371 shares are issued and outstanding as of the date hereof, (ii) 200,000
shares of
Series A Convertible Preferred Stock, $.05 par value per share ("Series A
Stock"), of which 78,324 shares are issued and outstanding as of the date
hereof, and (iii) 4,500,000 shares of Series B Stock, of which 1,977,763 shares
are issued and outstanding as of the date hereof;
6. NEON is a corporation duly organized and existing under the laws of the
State of Delaware and is authorized to issue 30,000,000 shares of Common Stock,
$.01 par value per share ("NEON Common Stock"), of which 1,000 shares are issued
and outstanding as of the date hereof, and 6,776,331 shares of Preferred Stock,
$.01 par value per share, of which (i) 277,960 shares have been designed as
Series A Convertible Preferred Stock, $.01 par value per share ("NEON Series A
Stock"), of which no shares are issued and outstanding as of the date hereof,
and (ii) 4,498,371 shares have been designated as Series B Convertible Preferred
Stock, $.01 par value per share ("NEON Series B Stock"), of which no shares are
issued and outstanding as of the date hereof;
7. FiveCom MA desires to merge with and into NEON, NEON desires that
FiveCom MA be merged with and into NEON, and the Boards of Directors and
stockholders of FiveCom MA and NEON have adopted resolutions approving this
Agreement and such merger pursuant to the terms hereof;
8. The parties hereto intend that the foregoing contributions of LLC
interests to FiveCom MA qualify as "tax free contributions" pursuant to Section
351 of the Internal Revenue Code.
NOW THEREFORE, in consideration of the foregoing premises and the
undertakings herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
CONTRIBUTION OF MEMBERSHIP INTERESTS
1.1 Contribution of Membership Interests in FiveCom LLC.
(a) CMP hereby contributes, assigns, conveys and transfers to FiveCom
MA, and its successors and assigns, 99.9% of its shares of the Membership
Interests (as that term is defined in the Amended and Restated Operating
Agreement of FiveCom LLC, dated as of May 23, 1996, as amended to date (as
amended, the "FiveCom LLC Agreement")) of FiveCom LLC, including, without
limitation, all allocations of profits and losses, and distributions of cash or
other property, represented by such Membership Interests, and other rights
otherwise accruing to CMP by virtue of owning such Membership Interests, in
exchange for 144,172 shares
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of the Series B Stock of FiveCom MA; FiveCom MA hereby agrees to issue such
shares to CMP promptly upon the Contribution Effective Date (as defined in
Section 1.5). CMP makes the representations, warranties and covenants with
respect to such Membership Interests as are set forth in Section 1.4 of this
Article I. FiveCom MA hereby accepts the contribution and assignment of such
Membership Interests and agrees to become substituted as a member of FiveCom LLC
to the extent of such Membership Interests and to be bound by and perform all of
the obligations of a Member under the FiveCom LLC Agreement, and to pay or
perform all of the obligations of CMP arising thereunder in respect of such
Membership Interests from and after the date hereof. FiveCom MA hereby
acknowledges that CMP retains .1% of its shares of the Membership Interests in
FiveCom LLC after the contribution and assignment described in this Section 1.1
(the "CMP Retained Interest").
(b) Mode 1 hereby contributes, assigns, conveys and transfers to
FiveCom MA, and its successors and assigns, all of its shares of the Membership
Interests (as that term is defined in the FiveCom LLC Agreement) of FiveCom LLC,
including, without limitation, all allocations of profits and losses, and
distributions of cash or other property, represented by such Membership
Interests, and other rights otherwise accruing to Mode 1 by virtue of owning
such Membership Interests, in exchange for 285,425 shares of the Series B Stock
of FiveCom MA; FiveCom MA hereby agrees to issue such shares to Mode 1 promptly
upon the Contribution Effective Date. Mode 1 makes the representations,
warranties and covenants with respect to such Membership Interests as are set
forth in Section 1.4 of this Article I. FiveCom MA hereby accepts the
contribution and assignment of such Membership Interests and agrees to become
substituted as a member of FiveCom LLC to the extent of such Membership
Interests and to be bound by and perform all of the obligations of a Member
under the FiveCom LLC Agreement, and to pay or perform all of the obligations of
Mode 1 arising thereunder in respect of such Membership Interests from and after
the date hereof.
(c) Xx. Xxxxxxxxxx hereby contributes, assigns, conveys and transfers
to FiveCom MA, and its successors and assigns, all of his shares of the
Membership Interests (as that term is defined in the FiveCom LLC Agreement) of
FiveCom LLC, including, without limitation, all allocations of profits and
losses, and distributions of cash or other property, represented by such
Membership Interests, and other rights otherwise accruing to Xx. Xxxxxxxxxx by
virtue of owning such Membership Interests, in exchange for 17,788 shares of the
Series B Stock of FiveCom MA; FiveCom MA hereby agrees to issue such shares to
Xx. Xxxxxxxxxx promptly upon the Contribution Effective Date. Xx. Xxxxxxxxxx
makes the representations, warranties and covenants with respect to such
Membership Interests as are set forth in Section 1.4 of this Article I. FiveCom
MA hereby accepts the contribution and assignment of such Membership Interests
and agrees to become substituted as a member of FiveCom LLC to the extent of
such Membership Interests and to be bound by and perform all of the obligations
of a Member under the FiveCom LLC Agreement, and to pay or
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perform all of the obligations of Xx. Xxxxxxxxxx arising thereunder in respect
of such Membership Interests from and after the date hereof.
(d) Xx. Xxxxx hereby contributes, assigns, conveys and transfers to
FiveCom MA, and its successors and assigns, all of his shares of the Membership
Interests (as that term is defined in the FiveCom LLC Agreement) of FiveCom LLC,
including, without limitation, all allocations of profits and losses, and
distributions of cash or other property, represented by such Membership
Interests, and other rights otherwise accruing to Xx. Xxxxx by virtue of owning
such Membership Interests, in exchange for 14,549 shares of the Series B Stock
of FiveCom MA; FiveCom MA hereby agrees to issue such shares to Xx. Xxxxx
promptly upon the Contribution Effective Date. Xx. Xxxxx makes the
representations, warranties and covenants with respect to such Membership
Interests as are set forth in Section 1.4 of this Article I. FiveCom MA hereby
accepts the contribution and assignment of such Membership Interests and agrees
to become substituted as a member of FiveCom LLC to the extent of such
Membership Interests and to be bound by and perform all of the obligations of a
Member under the FiveCom LLC Agreement, and to pay or perform all of the
obligations of Xx. Xxxxx arising thereunder in respect of such Membership
Interests from and after the date hereof.
(e) By their execution of this Agreement, which shall be deemed to be a
Written Action of Members in Lieu of a Meeting in accordance with Section 6.10
of the FiveCom LLC Agreement, each of FiveCom MA, CMP, Mode 1, Xx. Xxxxxxxxxx
and Xx. Xxxxx, being all of the Members of FiveCom LLC (before giving effect to
the transactions contemplated by Article II of this Agreement), hereby (i)
consents to the disposition of Membership Interests (as that term is defined in
the FiveCom LLC Agreement) of FiveCom LLC in the manner provided herein, (ii)
waives compliance with the provisions of such Section 11.1 by each other Member
(as that term is defined in the FiveCom LLC Agreement), and, (iii) effective
upon the Contribution Effective Date, permanently and irrevocably waives its
rights under Article 16 of the FiveCom LLC Agreement.
1.2 Assignment of Membership Interests in NE LLC.
(a) Mode 1 hereby contributes, assigns, conveys and transfers to
FiveCom MA, and its successors and assigns, 99.9% of its shares of the
Membership Interests (as that term is defined in the Amended and Restated
Operating Agreement of NE LLC, dated as of July 11, 1996, as amended to date (as
amended, the "NE LLC Agreement")) of NE LLC, including, without limitation, all
allocations of profits and losses, and distributions of cash or other property,
represented by such Membership Interests, and other rights otherwise accruing to
Mode 1 by virtue of owning such Membership Interests, in exchange for 1,711,381
shares of the Series B Stock of FiveCom MA; FiveCom MA hereby agrees to issue
such shares to Mode 1 promptly upon the Contribution Effective Date. Mode 1
makes the representations, warranties
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and covenants with respect to such Membership Interests as are set forth in
Section 1.4 of this Article I. FiveCom MA hereby accepts the contribution and
assignment of such Membership Interests and agrees to become substituted as a
member of NE LLC to the extent of such Membership Interests and to be bound by
and perform all of the obligations of a Member under the NE LLC Agreement, and
to pay or perform all of the obligations of Mode 1 arising thereunder in respect
of such Membership Interests from and after the date hereof. FiveCom MA hereby
acknowledges that Mode 1 retains .1% of its Membership Interests in NE LLC after
the contribution and assignment described in this Section 1.2 (the "Mode 1
Retained Interest").
(b) By their execution of this Agreement, which shall be deemed to be a
Written Action of Members in Lieu of a Meeting in accordance with Section 6.10
of the NE LLC Agreement, each of FiveCom LLC and Mode 1, being all of the
Members of NE LLC (before giving effect to the transactions contemplated by
Article II of this Agreement), hereby (i) consents to the disposition of
Membership Interests (as that term is defined in the NE LLC Agreement) of NE LLC
in the manner provided herein, (ii) waives compliance with the provisions of
such Section 11.1 by each other Member (as that term is defined in the NE LLC
Agreement), to the extent applicable, and, (iii) effective upon the Contribution
Effective Date, permanently and irrevocably waives its rights under Article 16
of the NE LLC Agreement.
1.3 Contribution of Membership Interests in FM LLC.
(a) MaineCom hereby contributes assigns, conveys and transfers to
FiveCom MA, and its successors and assigns, 99.9% of its shares of the
Membership Interests (as that term is defined in the Operating Agreement of FM
LLC, dated as of January 17, 1997 (the "FM LLC Agreement")) of FM LLC,
including, without limitation, all allocations of profits and losses, and
distributions of cash or other property, represented by such Membership
Interests, and other rights otherwise accruing to MaineCom by virtue of owning
such Membership Interests, in exchange for 282,126 shares of the Series B Stock
of FiveCom MA; FiveCom MA hereby agrees to issue such shares to MaineCom
promptly upon the Contribution Effective Date. MaineCom makes the
representations, warranties and covenants with respect to such Membership
Interests as are set forth in Section 1.4 of this Article I. FiveCom MA hereby
accepts the contribution and assignment of such Membership Interests and agrees
to become substituted as a member of FM LLC to the extent of such Membership
Interests and to be bound by and perform all of the obligations of a Member
under the FM LLC Agreement, and to pay or perform all of the obligations of
MaineCom arising thereunder in respect of such Membership Interests from and
after the date hereof. FiveCom MA hereby acknowledges that MaineCom retains .1%
of its Membership Interests in FM LLC after the contribution and assignment
described in this Section 1.3 (the "MaineCom Retained Interest").
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(b) By their execution of this Agreement, which shall be deemed to be a
Written Action of Members in Lieu of a Meeting in accordance with Section 6.10
of the FM LLC Agreement, each of FiveCom LLC and MaineCom, being all of the
Members of FM LLC (before giving effect to the transactions contemplated by
Article II of this Agreement), hereby (i) consents to the disposition of
Membership Interests (as that term is defined in the FM LLC Agreement) of FM LLC
in the manner provided herein, (ii) waives compliance with the provisions of
such Section 11.1 by each other Member (as that term is defined in the FM LLC
Agreement), to the extent applicable, and, (iii) effective upon the Contribution
Effective Date, permanently and irrevocably waives its rights under Article 16
of the FM LLC Agreement.
1.4 Representations, Warranties and Covenants with Respect to Interests.
Each of CMP, Mode 1, Xx. Xxxxxxxxxx, Xx. Xxxxx and MaineCom (each, a "Member"
for purposes of this Section 1.4), individually and not jointly or severally,
makes the following representations, warranties and covenants with respect to
its Membership Interests (as defined in the FiveCom LLC Agreement, the NE LLC
Agreement and the FM LLC Agreement, as the case may be) in FiveCom LLC, NE LLC
and FM LLC, respectively:
(a) the Member owns, or, upon the Contribution Effective Date will own,
the Membership Interests free and clear of all mortgages, pledges, liens,
charges, encumbrances, claims or other security arrangements or obligations to
other persons, of whatever kind or character (provided that, MaineCom's
Membership Interest in FM LLC and Mode 1's Membership Interests in NE LLC are
subject to pledges in favor of People's Heritage Savings Bank and CMP,
respectively, which pledges will be released effective upon the issuance of
Series B Stock of FiveCom MA in consideration of the contribution of such
interests to FiveCom MA pursuant to the terms of this Agreement, and such
interests will be contributed free and clear of any lien);
(b) the Member has full power and legal right and authority to
contribute, assign and transfer title to the Membership Interests;
(c) the Member will defend such title to the Membership Interests from
and against all claims and demands whatsoever, at law or in equity, of all
persons;
(d) the Member will execute and deliver such further instruments and do
such further acts and things as may be required to admit FiveCom MA as a
substitute member of FiveCom LLC, NE LLC or FM LLC, as the case may be, and to
reflect the Membership Interests contributed and assigned to FiveCom MA hereby;
and
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(e) the Member will indemnify and save FiveCom MA harmless from any and
all claims, demands, actions, causes of action, suits, proceedings, damages,
liabilities and costs and expenses of every nature whatsoever arising out of or
relating to any breach of the representations, warranties, covenants and
agreements contained in this Section 1.4.
1.5 Effectiveness of Contribution of Interests. The contribution and
assignment of Membership Interests contemplated by this Article I shall be
deemed to be effective immediately prior to the mergers contemplated by Articles
II and III of this Agreement (the "Contribution Effective Date").
ARTICLE II
MERGERS OF FIVECOM LLC AND NE LLC
2.1 Merger. The merger of FiveCom LLC into FiveCom MA shall herein be
referred to as the "FiveCom Merger," and the merger of NE LLC into FiveCom MA
shall herein be referred to as the "NE Merger." All references herein to a
"Company" shall mean FiveCom LLC for purposes of the FiveCom Merger, and NE LLC
for purposes of the NE Merger. All references herein to the "Surviving Company"
shall mean FiveCom MA for purposes of both the FiveCom Merger and the NE Merger.
Pursuant to the FiveCom Merger and the NE Merger, each Company shall be merged
into the Surviving Company pursuant to Section 83A of the Massachusetts Business
Corporation Law and Section 59 of the Massachusetts Limited Liability Company
Act. The Surviving Company shall survive the respective mergers herein
contemplated and shall continue to be governed by the laws of the Commonwealth
of Massachusetts. The separate existence of each Company shall cease forthwith
upon the Effective Date (as defined below in this Article II).
2.2 Member Approval. By their execution of this Agreement, which shall be
deemed to be a Written Action of Members in Lieu of a Meeting in accordance with
Section 6.10 of each of the FiveCom LLC Agreement and the NE LLC Agreement, as
the case may be, (i) as the sole members of FiveCom LLC (after giving effect to
the transactions contemplated by Article II of this Agreement), each of FiveCom
MA and CMP hereby adopt this Agreement and approve the FiveCom Merger pursuant
to the terms described herein and the distribution of the assets of FiveCom LLC
to FiveCom MA pursuant thereto, and permanently and irrevocably waive any rights
they may have under Section 11.1 and Article 16 of the FiveCom LLC Agreement
with respect to the FiveCom Merger, and authorize the Manager (as that term is
defined in the FiveCom LLC Agreement) to execute and deliver any agreements,
certificates, instruments or other documents, and to take any other actions,
necessary to carry into effect the intent of this Agreement, and (ii) as the
sole members of NE LLC (after giving effect to the transactions contemplated by
Article II
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of this Agreement), each of FiveCom MA and Mode 1 hereby adopt this Agreement
approve the NE Merger pursuant to the terms described herein and the
distribution of the assets of NE LLC to FiveCom MA pursuant thereto, permanently
and irrevocably waive any rights they may have under Section 11.1 and Article 16
of the NE LLC Agreement with respect to the NE Merger, and authorize the Manager
(as that term is defined in the NE LLC Agreement) to execute and deliver any
agreements, certificates, instruments or other documents, and to take any other
actions, necessary to carry into effect the intent of this Agreement.
2.3 Effective Date. Each of the FiveCom Merger and the NE Merger shall be
effective upon the filing of Articles and Certificates of Merger with the
Secretary of State of the Commonwealth of Massachusetts. The time of such
effectiveness shall be referred to in this Article II as the "Effective Date."
The filing of such Articles and Certificates of Merger shall be made as soon as
practicable after all required third party consents and approvals have been
obtained, and shall be made in such manner as will cause the Effective Date of
the FiveCom Merger to be immediately prior to the Effective Date of the NE
Merger.
2.4 Membership Interests in Each Company; Effect on LLC Agreements. On each
Effective Date, by virtue of the FiveCom Merger and the NE Merger, as the case
may be, and without any action on the part of the holders thereof, each
outstanding membership interest in each Company (including the CMP Retained
Interest and the Mode 1 Retained Interest) shall be cancelled (it being
understood and agreed that the shares of Series B Stock issued to CMP and Mode 1
pursuant to Sections 1.1(a), 1.1(b) and 1.2 of this Agreement, were also issued
in consideration of the cancellation of such retained interests). Effective as
of each Effective Date, each of the FiveCom LLC Agreement and the NE LLC
Agreement are hereby terminated and shall be of no further force or effect.
2.5 Capital Stock of the Surviving Company. The capital stock of the
Surviving Company shall be unaffected by the FiveCom Merger and the NE Merger.
2.6 Succession. On each Effective Date, the Surviving Company shall succeed
to all of the rights, privileges, debts, liabilities, powers and property of
each Company in the manner of and as more fully set forth in Section 62 of the
Massachusetts Limited Liability Company Act. Without limiting the foregoing,
upon each Effective Date, all property, rights, privileges, franchises, patents,
trademarks, licenses, registrations, and other assets of every kind and
description of each Company shall be transferred to, vested in and devolved upon
the Surviving Company without further act or deed and all property, rights, and
every other interest of each Company and the Surviving Company shall be as
effectively the property of the Surviving Company as they were of each Company
and the Surviving Company, respectively. All rights of creditors of each Company
and all liens upon any property of each Company shall be preserved unimpaired,
and all
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debts, liabilities and duties of each Company shall attach to the Surviving
Company and may be enforced against it to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it. Without limiting
the foregoing, the warrant to purchase of the Membership Interests in FiveCom
LLC held by Xxxxxxxxxxx & Co., Inc. (the "OpCo LLC Warrant") shall evidence the
right to purchase 65,167 shares of the Series B Stock of the Surviving Company
at an exercise price of $5.13 per share, and the Surviving Company shall execute
and deliver a new warrant to Xxxxxxxxxxx & Co., Inc. upon surrender of the OpCo
LLC Warrant.
2.7 Articles of Organization and By-Laws. The Articles of Organization of
the Surviving Company in effect on each Effective Date shall continue to be the
Articles of Organization of the Surviving Company until further amended in
accordance with the provisions thereof and applicable law. The By-Laws of the
Surviving Company in effect on each Effective Date shall continue to be the
By-Laws of the Surviving Company until amended in accordance with the provisions
thereof and applicable law.
2.8 Directors and Officers. The members of the Board of Directors and the
officers of the Surviving Company on each Effective Date shall continue in
office until the expiration of their respective terms of office and until their
successors have been elected and qualified.
2.9 Further Assurances. From time to time, as and when required by the
Surviving Company or by its successors and assigns, there shall be executed and
delivered on behalf of each Company such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action, as
shall be appropriate or necessary in order to vest or perfect in or to confirm
of record or otherwise in the Surviving Company the title to and possession of
all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of each Company, and otherwise to carry out the
purposes of this Agreement, and the managers, officers and members of each
Company are fully authorized in the name and on behalf of each Company or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
ARTICLE III
MERGER OF FM LLC WITH AND INTO FM INC.
3.1 Merger. The merger of FM LLC into FM Inc. shall herein be referred to
as the "FM Merger." FM LLC shall be merged with and into FM Inc. in accordance
with Section 59 of the Massachusetts Limited Liability Company Act and Section
264 of the Delaware General Corporation Law. FM Inc. shall survive the merger
herein contemplated and shall continue to be governed by the laws of the State
of Delaware.
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The separate existence of FM LLC shall cease forthwith upon the Effective Date
(as defined below in this Article III).
3.2 Member Approval; Consents and Waivers. By their execution of this
Agreement, which shall be deemed to be a Written Action of Members in Lieu of a
Meeting in accordance with Section 6.10 of the FM LLC Agreement, each of FiveCom
MA and MaineCom, being all of the members of FM LLC (after giving effect to the
contribution and assignment of Membership Interests contemplated by Article II
hereof) hereby (i) adopts this Agreement and approves the FM Merger pursuant to
the terms described herein, and the distribution of the assets of FM LLC to FM
Inc. pursuant thereto, and (ii) authorizes the Manager (as that term is defined
in the FM LLC Agreement) of FM LLC to execute and deliver any agreements,
certificates, instruments or other documents, and to take any other actions,
necessary to carry into effect the intent of this Agreement.
3.3 Effective Date. The FM Merger shall be effective upon the filing of a
Certificate of Merger with the Secretary of State of the Commonwealth of
Massachusetts and a Certificate of Merger with the Secretary of State of the
State of Delaware. The time of such effectiveness shall herein be referred to in
this Article III as the "Effective Date."
3.4 Membership Interests in FM LLC; Effect on LLC Agreement. On the
Effective Date, by virtue of the FM Merger, and without any action on the part
of the holders thereof, (i) all of the outstanding shares of Membership
Interests in FM LLC (including the MaineCom Retained Interest) shall, in the
aggregate, be converted into the right to receive 1,000 shares of the Common
Stock, $.01 par value per share, of FM Inc. ("FM Common Stock"), and (ii) in
consideration of the shares of Series B Stock issued to it pursuant to Section
1.3.(a), MaineCom hereby contributes to FiveCom MA all shares of FM Common Stock
issuable in respect of the MaineCom Retained Interest as a result of the FM
Merger. Effective as of the Effective Date, the FM LLC Agreement is hereby
terminated and shall be of no further force or effect.
3.5 Capital Stock of FM Inc. Except as otherwise set forth in Section 3.4,
the authorized, issued and outstanding capital stock of FM Inc. shall be
unaffected by the FM Merger.
3.6 Succession. On the Effective Date, FM Inc. shall succeed to all of the
rights, privileges, debts, liabilities, powers and property of FM LLC in the
manner of and as more fully set forth in Section 264 of the Delaware General
Corporation Law and Section 62 of the Massachusetts Limited Liability Company
Act. Without limiting the foregoing, upon the Effective Date, all property,
rights, privileges, franchises, patents, trademarks, licenses, registrations,
and other assets of every kind and description of FM LLC shall be transferred
to, vested in and devolved upon FM Inc. without further act or deed and all
property, rights, and every other interest of
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FM LLC and FM Inc. shall be as effectively the property of FM Inc. as they were
of FM LLC and FM Inc. All rights of creditors of FM LLC and all liens upon any
property of FM LLC shall be preserved unimpaired, and all debts, liabilities and
duties of FM LLC shall attach to FM Inc. and may be enforced against it to the
same extent as if said debts, liabilities and duties had been incurred or
contracted by it.
3.7 Certificate of Incorporation and By-Laws. The Certificate of
Incorporation of FM Inc. in effect on the Effective Date shall continue to be
the Certificate of Incorporation of FM Inc. until further amended in accordance
with the provisions thereof and applicable law. The By-Laws of FM Inc. in effect
on each Effective Date shall continue to be the By-Laws of FM Inc. until amended
in accordance with the provisions thereof and applicable law.
3.8 Directors and Officers. The members of the Board of Directors and the
officers of FM Inc. on the Effective Date shall continue in office until the
expiration of their respective terms of office and until their successors have
been elected and qualified.
3.9 Further Assurances. From time to time, as and when required by FM Inc.
or by its successors and assigns, there shall be executed and delivered on
behalf of FM Inc. such deeds and other instruments, and there shall be taken or
caused to be taken by it such further and other action, as shall be appropriate
or necessary in order to vest or perfect in or to confirm of record or otherwise
in FM Inc. the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of FM LLC, and
otherwise to carry out the purposes of this Agreement, and the managers,
officers and members of FM LLC are fully authorized in the name and on behalf of
FM LLC or otherwise to take any and all such action and to execute and deliver
any and all such deeds and other instruments.
ARTICLE IV
MERGER OF FIVECOM MA WITH AND INTO NEON
4.1 Merger. The merger of FiveCom MA into NEON shall herein be referred to
as the "Parent Merger". FiveCom MA shall be merged into NEON pursuant to Section
79 of the Massachusetts Business Corporaton Law and Section 252 of the General
Corporation Law of Delaware. NEON shall survive the merger herein contemplated
and shall continue to be governed by the laws of the State of Delaware. The
separate corporate existence of FiveCom MA shall cease forthwith upon the
Effective Date (as defined below in this Article IV).
4.2 Stockholder Approval. As soon as practicable after the execution of
this Agreement, FiveCom MA shall, if necessary under the Business Corporation
Law
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of Massachusetts, submit this Agreement to its stockholders for approval. The
failure of the stockholders of FiveCom MA to approve the Parent Merger shall not
affect the validity of any of the other transactions contemplated by this
Agreement.
4.3 Effective Date. The Parent Merger shall be effective upon the filing of
Articles of Merger with the Secretary of State of the Commonwealth of
Massachusetts and a Certificate of Merger with the Secretary of State of the
State of Delaware, which filings shall be made as soon as practicable after all
required stockholder approvals and other third party consents and approvals have
been obtained. The time of such effectiveness shall be referred to in this
Article IV as the "Effective Date." The filing of such Articles and Certificates
of Merger shall be made in such manner as will cause the Effective Date of the
Parent Merger to be immediately after the Effective Date of the NE Merger.
4.4 Capital Stock of FiveCom MA. Except as otherwise set forth in Section
4.10, on the Effective Date, by virtue of the Parent Merger and without any
action on the part of the holders thereof, (i) each share of Common Stock of
FiveCom MA issued and outstanding immediately prior thereto shall cease to exist
and shall be changed and converted into one fully paid and non-assessable share
of NEON Common Stock, (ii) each option or warrant to purchase shares of Common
Stock or Series B Stock of FiveCom MA shall be converted into an option purchase
the same number of shares of NEON Common Stock or NEON Series B Stock, (iii)
each share of the Series A Stock of FiveCom MA issued and outstanding
immediately prior thereto shall cease to exist and shall be changed and
converted into 3.54887218 fully paid and non-assessable share(s) of NEON Series
A Stock, and (iv) each share of the Series B Stock of FiveCom MA issued and
outstanding immediately prior thereto shall cease to exist and shall be changed
and converted into one fully paid and non-assessable share of NEON Series B
Stock. Any calculation hereunder resulting in a fractional share shall be
truncated to the nearest whole share.
4.5 Common Stock of NEON. On the Effective Date, by virtue of the Parent
Merger and without any action on the part of the holder thereof, each share of
NEON Common Stock issued and outstanding immediately prior thereto shall be
cancelled.
4.6 Stock Certificates. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock, Series A Stock and Series B Stock of FiveCom MA shall be deemed
for all purposes to evidence ownership of and to represent the shares of NEON
into which the shares of FiveCom MA represented by such certificates have been
converted as herein provided. The registered owner on the books and records of
FiveCom MA or its transfer agent of any such outstanding stock certificate
shall, until such certificate shall have been surrendered for transfer or
conversion or otherwise accounted for to NEON or its transfer agent, have and be
entitled to exercise any voting and other
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rights with respect to and to receive any dividend and other distributions upon
the shares of NEON evidenced by such outstanding certificate as above provided.
4.7 Succession. On the Effective Date, NEON shall succeed to all of the
rights, privileges, debts, liabilities, powers and property of FiveCom MA in the
manner of and as more fully set forth in Section 259 of the General Corporation
Law of Delaware. Without limiting the foregoing, upon the Effective Date, all
property, rights, privileges, franchises, patents, trademarks, licenses,
registrations, and other assets of every kind and description of FiveCom MA
shall be transferred to, vested in and devolved upon NEON without further act or
deed and all property, rights, and every other interest of FiveCom MA and NEON
shall be as effectively the property of NEON as they were of FiveCom MA and
NEON, respectively. All rights of creditors of FiveCom MA and all liens upon any
property of FiveCom MA shall be preserved unimpaired, and all debts, liabilities
and duties of FiveCom MA, including, without limitation, all liabilities and
duties of FiveCom MA under its employee stock plans shall attach to NEON and may
be enforced against it to the same extent as if said debts, liabilities and
duties had been incurred or contracted by it.
4.8 Certificate of Incorporation and By-Laws. The Certificate of
Incorporation of NEON in effect on the Effective Date shall continue to be the
Certificate of Incorporation of NEON until further amended in accordance with
the provisions thereof and applicable law. The By-Laws of NEON in effect on the
Effective Date shall continue to be the By-Laws of NEON until amended in
accordance with the provisions thereof and applicable law.
4.9 Directors and Officers. The members of the Board of Directors and the
officers of NEON on the Effective Date shall continue in office until the
expiration of their respective terms of office and until their successors have
been elected and qualified.
4.10 Further Assurances. From time to time, as and when required by NEON or
by its successors and assigns, there shall be executed and delivered on behalf
of FiveCom MA such deeds and other instruments, and there shall be taken or
caused to be taken by it such further and other action, as shall be appropriate
or necessary in order to vest or perfect in or to confirm of record or otherwise
in NEON the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of FiveCom MA,
and otherwise to carry out the purposes of this Agreement, and the officers and
directors of FiveCom MA are fully authorized in the name and on behalf of
FiveCom MA or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
4.11 Dissenting Shares. For purposes of this Article IV, "Dissenting
Shares" means shares of the capital stock of FiveCom MA held as of the Effective
Date by a
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stockholder who has not voted such shares in favor of adoption of this Agreement
and with respect to which appraisal shall have been duly demanded and perfected
in accordance with Section 86 of the Massachusetts Business Corporation Law and
not effectively withdrawn or forfeited prior to the Effective Date. Dissenting
Shares shall not represent the right to receive the consideration set forth in
Section 4.4 of this Agreement unless the holder of such shares shall have
forfeited his right to appraisal under the Massachusetts General Corporation Law
or withdrawn, with the consent of NEON, his demand for appraisal. If such
stockholder has so forfeited or withdrawn his right to appraisal of Dissenting
Shares, then, as of the occurrence of such event, such holder's Dissenting
Shares shall cease to be Dissenting Shares and shall represent the right to
receive the consideration set forth in Section 4.4 of this Agreement. If the
holders of more than 1% of the outstanding capital stock of FiveCom MA properly
exercise their dissenters' rights, then FiveCom MA and NEON may elect to abandon
the Parent Merger.
ARTICLE V
CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations, Warranties and Covenants of FiveCom MA.
--------------------------------------------------------
5.1.1 Capitalization. FiveCom MA represents and warrants to MaineCom,
CMP, Mode 1, Xx. Xxxxxxxxxx and Xx. Xxxxx that its authorized, issued and
outstanding capital stock is as set forth in Recital 5 of this Agreement as of
the date hereof.
5.1.2 Indemnification. FiveCom MA hereby agrees to indemnify and save
harmless each of MaineCom, CMP, Mode 1, Xx. Xxxxxxxxxx and Xx. Xxxxx from any
and all claims, demands, actions, causes of action, suits, proceedings, damages,
liabilities and costs and expenses of every nature whatsoever arising out of or
relating to (i) any liability attributable to such person's Membership Interests
(as that term is defined in the FiveCom LLC Agreement, the FM LLC Agreement or
the NE LLC Agreement, as the case may be) in FiveCom LLC, FM LLC or NE LLC, as
the case may be in respect of the operations, events or activities of such
entities from and after the date hereof, and (ii) any breach of its
representations, warranties, covenants and agreements contained in this Section
5.1.
5.2 Representations, Warranties and Covenants of NEON.
--------------------------------------------------
5.2.1 Capitalization. NEON represents and warrants to MaineCom, CMP,
Mode 1, Xx. Xxxxxxxxxx and Xx. Xxxxx that its authorized, issued and outstanding
capital stock is as set forth in Recital 6 of this Agreement as of the date
hereof and (ii) attached as Exhibit A to this Agreement is a true, correct and
complete
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copy of its Amended and Restated Certificate of Incorporation as in effect as of
the date hereof.
5.2.2 Indemnification. FiveCom MA hereby agrees to indemnify and save
harmless each of MaineCom, CMP, Mode 1, Xx. Xxxxxxxxxx and Xx. Xxxxx from any
and all claims, demands, actions, causes of action, suits, proceedings, damages,
liabilities and costs and expenses of every nature whatsoever arising out of or
relating to any breach of its representations, warranties, covenants and
agreements contained in this Section 5.2.
5.3 Capital Stock in NEON. Each of MaineCom, CMP, Mode 1, Xx. Xxxxxxxxxx
and Xx. Xxxxx each hereby agree that Exhibit B to this Agreement sets forth a
fair and correct statement of the number of shares of the capital stock of NEON
to be held by each of them as a result of the transactions contemplated by this
Agreement, and that such shares, when issued in accordance with the terms
hereof, shall satisfy in full all preemptive rights, antidilution rights and/or
rights of first refusal whatsoever, held by any of them on or prior to the date
hereof, including, but not limited to, any such rights under (i) the Articles of
Organization of FiveCom MA, as amended to date, (ii) that certain Stock
Subscription Agreement between FiveCom MA and MaineCom, dated as of November 22,
1995 and as amended to date (the "Stock Subscription Agreement"), (iii) the
FiveCom LLC Agreement, (iv) the FM LLC Agreement, (v) the NE LLC Agreement, (vi)
any employment agreement, warrant, option or other right to acquire equity
interests of any of FiveCom MA, FiveCom LLC, FM LLC or NE LLC.
5.4 Waiver of Preemptive Rights. MaineCom hereby waives its preemptive
rights under Section 9.1 of the Stock Subscription Agreement with respect to the
issuance of all shares of Series B Stock by FiveCom MA pursuant to this
Agreement, and, effective upon the later to occur of (i) the Effective Date of
the Parent Merger and (ii) the closing of the initial underwritten public
offering of NEON Common Stock, hereby permanently and irrevocably waives such
rights.
5.5 Consents to Assignment.
-----------------------
5.5.1 System Management Agreement. Pursuant to Section 14.6 of the
System Management Agreement, dated January 13, 1997, by and between FM LLC and
FiveCom LLC, (i) FM LLC hereby consents to the assignment of the rights and
obligations of FiveCom LLC thereunder to FiveCom MA and from FiveCom MA to NEON,
and (ii) FiveCom LLC, FiveCom MA and NEON hereby consent to the assignment of
the rights and obligations of FM LLC thereunder to FM Inc.
5.5.2 CMP Fiber Agreement. Pursuant to Sections 32.1 and 32.2 of the
Agreement for the Provision of Fiber Optic Facilities and Services by and
between
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CMP and FM LLC, CMP hereby consents to the assignment of such agreement by FM
LLC to FM Inc
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ARTICLE VI
MISCELLANEOUS
6.1 Abandonment. At any time prior to the first of any Effective Date, this
Agreement may be terminated and the transactions contemplated hereby may be
abandoned by the parties, notwithstanding approval of this Agreement by the
stockholders or members of the respective parties.
6.2 Amendment. This Agreement may be amended by the parties at any time
prior to the Effective Date of any Merger, provided that an amendment made
subsequent to the approval of this Agreement by the stockholders or members (as
the case may be) of any party shall not (i) alter or change the amount or kind
of shares, securities, cash, property and/or rights to be received in exchange
for or on conversion of all or any of the shares of any class or series thereof
of such party, (ii) alter or change any term of the Certificate of Incorporation
of NEON to be effected by the Parent Merger or (iii) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series of the stock of such
corporation.
6.3 Governing Law. This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of Delaware, except where the provisions of the Massachusetts Business
Corporation Law or the Massachusetts Limited Liability Company Act apply by
their terms or are explicitly stated to apply herein.
6.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf by its officers or managers thereunto duly authorized,
as of the date first above written.
FIVECOM, INC.
(a Massachusetts corporation)
ATTEST: By:_________________________________
Xxxxxx Xxxxxxxxxx, President
__________________________
Xxxxxxx Xxxxxxx, Treasurer
NORTHEAST OPTIC NETWORK, INC.
(a Delaware corporation)
ATTEST: By:_________________________________
Xxxxxx Xxxxxxxxxx, President
__________________________
Xxxxxxx Xxxxxxx, Treasurer
FIVECOM LLC
By: FiveCom, Inc. (a Massachusetts
corporation), its Manager
By:_________________________________
Xxxxxx Xxxxxxxxxx, President
FIVECOM OF MAINE LLC
By: FiveCom, Inc. (a Massachusetts
corporation), its Manager
By:________________________________
Xxxxxx Xxxxxxxxxx, President
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FIVECOM OF MAINE, INC.
(a Delaware corporation)
ATTEST: By:_____________________________
Xxxxxx Xxxxxxxxxx, President
__________________________
Xxxxxxx Xxxxxxx, Treasurer
NECOM LLC
By: FiveCom, Inc. (a Massachusetts
corporation), its Manager
By:____________________________
Xxxxxx Xxxxxxxxxx, President
CENTRAL MAINE POWER COMPANY
By:________________________________
Its:_______________________________
MAINECOM SERVICES
By:________________________________
Its:_______________________________
MODE 1 COMMUNICATIONS, INC.
By:________________________________
Its:_______________________________
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___________________________________
Xxxxxx Xxxxxxxxxx
___________________________________
Xxxxxxx Xxxxx
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CERTIFICATIONS
The undersigned Clerk of FiveCom, Inc., a Massachusetts corporation
("FiveCom MA"), hereby certifies as Clerk of FiveCom MA, that the provisions of
Article IV of the Restructuring and Contribution Agreement to which this
certificate is attached, was duly adopted pursuant to the provisions of the
Massachusetts Business Corporation Law by a vote of the majority of the issued
and outstanding shares of Common Stock and Series B Convertible Preferred Stock
of FiveCom MA, voting together as a class, and by vote of a majority of the
issued and outstanding shares of Series A Convertible Preferred Stock of FiveCom
MA, voting as a separate class, which provisions of Article IV of the
Restructuring and Contribution Agreement were thereby adopted as the act of the
shareholders of FiveCom MA and the duly adopted agreement and act of FiveCom MA.
WITNESS my hand this ____ day of _______, 1998.
____________________________________
Xxxxxxx X. Xxxxx
The undersigned Secretary of NorthEast Optic Network, Inc., a Delaware
corporation ("NEON"), hereby certifies as Secretary of NEON, that the provisions
of Article IV of the Restructuring and Contribution Agreement to which this
certificate is attached, was duly adopted pursuant to Section 228 of the
Delaware General Corporation Law by written consent of the sole shareholder
holding 1,000 shares of the capital stock of NEON, same being all of the shares
issued and outstanding and entitled to vote, which provisions of Article IV of
the Restructuring and Contribution Agreement were thereby adopted as the act of
the sole shareholder of NEON and the duly adopted agreement and act of NEON.
WITNESS my hand this ____ day of _______, 1998.
____________________________________
Xxxxxxx X. Xxxxx
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The undersigned Secretary of FiveCom of Maine, Inc., a Delaware corporation
("FM Inc."), hereby certifies as Secretary of FM Inc., that the provisions of
Article IV of the Restructuring and Contribution Agreement to which this
certificate is attached, was duly adopted pursuant to Section 228 of the
Delaware General Corporation Law by written consent of the sole shareholder
holding 1,000 shares of the capital stock of FM Inc., same being all of the
shares issued and outstanding and entitled to vote, which provisions of Article
IV of the Restructuring and Contribution Agreement were thereby adopted as the
act of the sole shareholder of FM Inc. and the duly adopted agreement and act of
FM Inc.
WITNESS my hand this ____ day of _______, 1998.
____________________________________
Xxxxxxx Xxxxxxx
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EXHIBIT A
---------
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NORTHEAST OPTIC NETWORK, INC.
EXHIBIT B
---------
POST-REORGANIZATION CAPITALIZATION
