Exhibit 2.2
AGREEMENT AND PLAN OF MERGER, dated as of
__________, 1999 (this "Agreement"), between TW
Telecom Merger Corp., a Delaware corporation ("TW
Telecom"), Time Warner Telecom LLC , a Delaware
limited liability company ("TWT LLC") and Time
Warner Telecom Inc., a Delaware corporation
("TWT Inc.").
W I T N E S S E T H :
WHEREAS TW Telecom desires to acquire the properties and other assets
and to assume all of the liabilities and obligations pursuant to a merger of
each of TWT LLC and TWT Inc. with and into TW Telecom;
WHEREAS Section 18-209 of the Delaware Limited Liability Company Act,
6 Del. C. 'SS' 18-101, et seq. (the "Delaware Act") and Section 264 of the
General Corporation Law of the State of Delaware, 8 Del C. 'SS' 101, et seq.
(the "GCL") authorize the merger of a Delaware limited liability company with
and into a Delaware corporation and Section 251 of the GCL authorizes the merger
of a Delaware corporation with and into another Delaware corporation;
WHEREAS TW Telecom, TWT LLC and TWT Inc. now desire to merge (the
"Merger"), following which TW Telecom shall be the surviving entity;
WHEREAS Time Warner Companies, Inc., a Delaware corporation ("TWX"),
American Television and Communications Corporation, a Delaware corporation
("ATC"), Warner Communications Inc., a Delaware corporation ("WCI"), TW/TAE,
Inc., a Delaware corporation ("TW/TAE"), FibrCOM Holdings, L.P., a Delaware
limited partnership that is owned by TW/Kblcom Inc., a Delaware corporation
("TW/KBLCOM"), Paragon Communications, a Colorado general partnership ("Paragon"
and, together with TWX, ATC, WCI, TWI/TAE and TW/KBLCOM, the "TW Stockholders"),
Media One Group, Inc., a Colorado corporation ("MediaOne"), and Advance/Xxxxxxxx
Partnership, a New York general partnership ("A/N"), as the "distributee
members" under the Amended and Restated Limited Liability Company Agreement of
TWT LLC (the "Members") have approved this Agreement and the consummation of the
Merger
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and have executed counterparts to this Agreement as evidence of that approval;
WHEREAS TW Telecom's Certificate of Incorporation and By-laws permit,
and resolutions adopted by TW Telecom's Board of Directors authorize, this
Agreement and the consummation of the Merger; and
WHEREAS TWT Inc.'s Certificate of Incorporation and By-laws permit and
resolutions adopted by TWT Inc.'s Board of Directors authorize, this Agreement
and the consummation of the Merger.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
The Merger
SECTION 1.01. The Merger. (a) After satisfaction or, to the extent
permitted hereunder, waiver of all conditions to the Merger, as TW Telecom, the
Members and TWT Inc. shall determine, TW Telecom, which shall be the surviving
entity, shall merge with each of TWT LLC and TWT Inc. and shall file a
certificate of merger substantially in the form of Exhibit A hereto (the
"Certificate of Merger") with the Secretary of State of the State of Delaware
and make all other filings or recordings required by Delaware law in connection
with the Merger. The Merger shall become effective at such time as is specified
in the Certificate of Merger (the "Effective Time").
(b) At the Effective Time, each of TWT LLC and TWT Inc. shall be
merged with and into TW Telecom, whereupon the separate existence of each of TWT
LLC and TWT Inc. shall cease, and TW Telecom shall be the surviving entity of
the Merger (the "Surviving Corporation") in accordance with Section 18-209 of
the Delaware Act and Sections 251, 259 and 264 of the GCL.
SECTION 1.02. Exchange of Interests. At the Effective Time:
(a) each Class B limited liability company interest in TWT LLC
outstanding immediately prior to the Effective Time, representing a 1%
participation percentage in the Company, shall be exchanged for 815,557.7
shares of Class B Common Stock of TW Telecom provided that TW Telecom shall
not be required to issue fractional shares;
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(b) each Class A limited liability company interest in TWT LLC
outstanding immediately prior to the Effective Time representing a 1%
participation percentage in the Company, shall be exchanged for 815,557.7
shares of Class A Common Stock of TW Telecom provided that TW Telecom shall
not be required to issue fractional shares;
(c) each option exercisable for one Unit (as defined in the TWT LLC
1998 Option Plan) outstanding immediately prior to the Effective Date shall
be exchanged for one option exercisable for one share of Class A Common
Stock of TW Telecom;
(d) each share of common stock of TW Telecom that is owned by TWT LLC
shall no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and no consideration shall be delivered
in exchange therefor; and
(e) each share of capital stock of TWT Inc. that is owned by TWT LLC
or any subsidiary of TWT LLC shall automatically be canceled and retired
and shall cease to exist, and no consideration shall be delivered in
exchange therefor.
ARTICLE II
The Surviving Corporation
SECTION 2.01. Certificate of Incorporation and By-laws. The
Certificate of Incorporation and By-laws of TW Telecom in effect at the
Effective Time shall be the Certificate of Incorporation and By-laws attached
hereto as Exhibits B and C, respectively unless and until amended in accordance
with its terms and applicable law. In accordance with the Amended and Restated
Certificate of Incorporation, the name of the Surviving Corporation shall be
Time Warner Telecom Inc.
SECTION 2.02. Directors and Officers. From and after the Effective
Time, until successors are duly elected or appointed and qualified in accordance
with the applicable law, (i) the Representatives of the Management Committee of
TWT LLC shall become the directors of TW Telecom and
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(ii) the officers of TWT LLC shall become the officers of TW Telecom.
ARTICLE III
Transfer and Conveyance of Assets
and Assumption of Liabilities
SECTION 3.01. Transfer, Conveyance and Assumption. At the Effective
Time, TW Telecom shall continue in existence as the Surviving Corporation, and
without further transfer, succeed to and possess all of the rights, privileges
and powers of each of TWT LLC and TWT Inc., and all of the assets and property
of whatever kind and character of each of TWT LLC and TWT Inc. shall vest in TW
Telecom without further act or deed; thereafter, TW Telecom, as the Surviving
Corporation, shall be liable for all of the liabilities and obligations of each
of TWT LLC and TWT Inc., and any claim or judgment against either TWT LLC or TWT
Inc. may be enforced against TW Telecom, as the Surviving Corporation, in
accordance with Section 18-209 of the Delaware Act and Section 259 of the GCL.
SECTION 3.02. Further Assurances. If at any time TW Telecom shall
consider or be advised that any further assignment, conveyance or assurance is
necessary or advisable to vest, perfect or confirm of record in the Surviving
Corporation the title to any property or right of either TWT LLC or TWT Inc., or
otherwise to carry out the provisions hereof, the proper representatives of each
of TWT LLC and TWT Inc. as of the Effective Time shall execute and deliver any
and all proper deeds, assignments and assurances and do all things necessary or
proper to vest, perfect or convey title to such property or right in the
Surviving Corporation and otherwise to carry out the provisions hereof.
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ARTICLE IV
Termination
SECTION 4.01. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether before
or after approval of this agreement by the members and stockholders of the
constituent entities:
(a) by mutual written consent of the Members, on behalf of TWT LLC,
the Board of Directors of TWT Inc., and the Board of Directors of TW
Telecom;
(b) by either the Members, on behalf of TWT LLC, the Board of
Directors of TWT Inc., or the Board of Directors of TW Telecom, if there
shall be any law or regulation that makes consummation of the Merger
illegal or otherwise prohibited, or if any judgment, injunction, order or
decree enjoining TW Telecom, TWT LLC or TWT Inc. from consummating the
Merger is entered and such judgment, injunction, order or decree shall
become final and nonappealable.
SECTION 4.02. Effect of Termination. If this Agreement is terminated
pursuant to Section 4.01, this Agreement shall become void and of no effect with
no liability on the part of any party hereto.
ARTICLE V
Miscellaneous
SECTION 5.01. Amendments; No Waivers. (a) Any provision of this
Agreement may, subject to applicable law, be amended or waived prior to the
Effective Time if, and only if, such amendment or waiver is in writing and
signed by the Members, on behalf of TWT LLC, by TWT Inc. and by TW Telecom.
(b) No failure or delay by any party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be
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cumulative and not exclusive of any rights or remedies provided by law.
SECTION 5.02. Integration. All prior or contemporaneous agreements,
contracts, promises, representations and statements, if any, between TW Telecom,
TWT LLC and TWT Inc., or their representatives, are merged into this agreement,
and this Agreement shall constitute the entire understanding between TW
Telecom, TWT LLC and TWT Inc. with respect to the subject matter hereof.
SECTION 5.03. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other parties hereto.
SECTION 5.04. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
giving effect to principles of conflicts of law.
SECTION 5.05. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received the counterpart hereof signed by the other party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized representatives as of the day
and year first above written.
TIME WARNER TELECOM LLC,
by
FIBRCOM HOLDINGS, L.P.,
by FIBRCOM INCORPORATED,
General Partner
by __________________________
Name:
Title:
TIME WARNER COMPANIES, INC.
by __________________________
Name:
Title:
AMERICAN TELEVISION AND
COMMUNICATIONS CORPORATION,
by __________________________
Name:
Title:
WARNER COMMUNICATIONS INC.,
by __________________________
Name:
Title:
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TW/TAE, INC.,
by __________________________
Name:
Title:
PARAGON COMMUNICATIONS,
by KBL COMMUNICATIONS, INC.,
Managing General Partner
by __________________________
Name:
Title:
MEDIAONE GROUP, INC.,
by __________________________
Name:
Title:
ADVANCE/XXXXXXXX PARTNERSHIP,
by ADVANCE COMMUNICATION
CORP., General Partner,
by __________________________
Name:
Title:
TIME WARNER TELECOM INC.
by __________________________
Name:
Title:
TW TELECOM MERGER CORP.
by __________________________
Name:
Title:
