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EXHIBIT 2.1
PLAN OF MERGER
by and between
SPLITROCK SERVICES, INC.
(a Texas corporation)
and
SPLITROCK SERVICES, INC.
(a Delaware corporation)
May 7, 1998
THIS PLAN OF MERGER was approved on April 6, 1998 by the Board of
Directors of Splitrock Services, Inc., a business corporation organized under
the laws of the State of Texas ("Splitrock"), and approved on April 27, 1998 by
the Board of Directors of Splitrock Services, Inc., a business corporation
organized under the laws of the State of Delaware ("Merger Sub" and together
with Splitrock the "Constituent Corporations").
WHEREAS, Splitrock wishes to reincorporate in the State of Delaware
and in order to accomplish said reincorporation, Splitrock will merge with and
into Merger Sub (the "Merger") upon the terms set forth herein; and
WHEREAS, the respective Boards of Directors of each of the Constituent
Corporations deem it advisable and in the best interests of each of such
corporations and their respective shareholders that Splitrock be merged with
and into Merger Sub, pursuant to the Texas Business Corporation Act ("TBCA")
and pursuant to the provisions of the Delaware General Corporation Law
("DGCL"), in the manner contemplated herein and have adopted resolutions
approving this Plan of Merger.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for the purpose of stating the
terms and conditions of the Merger, the mode of carrying the same into effect,
the manner and basis of causing the shares of each Constituent Corporation to
be converted into shares of Merger Sub or cancelled and such other details and
provisions as are deemed desirable, the parties hereto have agreed, and do
hereby agree, subject to the terms and conditions hereinafter set forth, as
follows:
ARTICLE I
In accordance with the provisions of the TBCA and the DGCL, Splitrock
shall be merged with and into Merger Sub, the latter of which shall be and is
herein sometimes referred to as the "Surviving Corporation," which shall
continue to exist as said Surviving Corporation under the name "Splitrock
Services, Inc." and shall continue to be governed by the DGCL. The separate
existence of Splitrock shall cease at the effective time and date of the Merger
in accordance with the provisions of the TBCA.
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ARTICLE II
The Merger shall become effective upon completion of the filing of an
executed original of this Plan of Merger and of Articles of Merger with the
Secretary of State of the State of Texas and the Certificate of Merger with the
Secretary of State of the State of Delaware. The date and time when the Merger
becomes effective shall be the "Effective Time" referred to in this Plan of
Merger.
ARTICLE III
A. The Merger. Subject to the terms and conditions of this Plan
of Merger, Splitrock shall be merged with and into Merger Sub at the Effective
Time. Following the Merger, the separate corporate existence of Splitrock
shall cease and Merger Sub shall be the Surviving Corporation and shall succeed
to and assume all the rights and obligations of Splitrock in accordance with
the DGCL.
B. Effects of the Merger; Certificate and Bylaws; Directors and
Officers.
1. The Certificate of Incorporation of Merger Sub as in
effect immediately prior to the Effective Time will be the Certificate
of Incorporation of the 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 DGCL.
PURSUANT TO ARTICLE 5.01 OF THE TBCA, A COPY OF THE CERTIFICATE OF
INCORPORATION IS ATTACHED HERETO.
2. The Bylaws of Merger Sub as in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving
Corporation thereafter unless and until changed, altered, or amended
in accordance with their terms, the terms of the Certificate of
Incorporation of the Surviving Corporation following the Effective
Time and as provided by law.
3. The directors and officers of Splitrock as in office
immediately prior to the Effective Time shall be the directors and
officers of the Surviving Corporation thereafter, each to hold their
directorship or office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation until their
respective successors are duly elected and qualified or such
director's or officer's earlier resignation, termination, removal or
retirement.
ARTICLE IV
The mode of carrying the Merger into effect and the manner and basis
of converting, exchanging or cancelling the shares of the Constituent
Corporations, as applicable, into shares of Merger Sub (as hereinafter
defined), or other consideration shall be as follows:
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A. Merger Consideration.
1. At the Effective Time, each share of Common Stock of
Splitrock outstanding immediately prior to the Effective Time shall
automatically and without any action on the part of the holder thereof
cease to be outstanding and be converted into the right to receive one
share of Common Stock, par value $.001 per share, of Merger Sub.
2. No fractional shares shall be issued and each holder
of the Common Stock of Splitrock shall be entitled to the nearest
whole share of Merger Sub rounded upwards if such fractional share
exceeds .5 and otherwise rounded downwards.
3. Effective as of the Effective Time, each holder of
record of a certificate or certificates that immediately prior to the
Effective Time represented issued and outstanding shares of Common
Stock of Splitrock, whose shares were exchanged for shares of Merger
Sub, shall surrender such certificates for cancellation to Merger Sub,
duly endorsed.
4. Each share of Common Stock of Merger Sub issued and
outstanding immediately prior to the Effective Time shall continue to
be issued and outstanding as one share of Common Stock of the
Surviving Corporation.
B. No Further Rights in Common Stock of Splitrock. As of the
Effective Time, all shares of the Common Stock of Splitrock shall no longer be
outstanding and shall automatically be canceled and shall cease to exist, and
each holder of a certificate representing shares of Common Stock of Splitrock
as of the Effective Time shall cease to have any rights with respect thereto,
except the right to receive that number of shares of Merger Sub to which such
holder is entitled upon surrender of such certificates as provided above.
ARTICLE V
Expenses and Franchise Taxes. The Surviving Corporation shall bear
all expenses of the Surviving Corporation, Merger Sub, and Splitrock in
connection with this Plan of Merger and all the transactions contemplated
hereby. Additionally, pursuant to Article 5.04(c) of the TBCA, the Surviving
Corporation will be responsible for the payment of all fees and franchise taxes
required by law and will be obligated to pay same.
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IN WITNESS WHEREOF, each of the Constituent Corporations has caused
this Plan of Merger to be signed in its corporate name by its duly authorized
officer, all as of the date first above written.
SPLITROCK SERVICES, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, President
SPLITROCK SERVICES, INC.,
a Texas corporation
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, President
[SIGNATURE PAGE TO PLAN OF MERGER]
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