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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF SKYSTREAM NETWORKS CORPORATION
A DELAWARE CORPORATION
AND
SKYSTREAM CORPORATION
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of January 31, 2000, (the
"Agreement") is between SkyStream Networks Corporation, a Delaware corporation
("SkyStream-Delaware") and SkyStream Corporation, a California corporation
("SkyStream-California"). SkyStream-Delaware and SkyStream-California are
sometimes referred to herein as the "Constituent Corporations."
R E C I T A L S
A. SkyStream-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 85,508,831
shares, 75,000,000 of which are designated "Common Stock", $0.001 par value, and
10,508,831 of which are designated "Preferred Stock", $0.001 par value. Of such
authorized shares of Preferred Stock, 4,425,000 shares are designated "Series A
Preferred Stock," 2,279,831 shares are designated "Series B Preferred Stock" and
3,804,000 shares are designated "Series C Preferred Stock." As of the date of
this Agreement of Merger, 1,000 shares of Common Stock are issued and
outstanding, all of which were held by SkyStream-California. No shares of
Preferred Stock are outstanding.
B. SkyStream-California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital of
30,508,831 shares, 20,000,000 of which are designated "Common Stock", no par
value and 10,508,831 of which are designated "Preferred Stock", no par value. Of
such authorized shares of Preferred Stock, 4,425,000 shares are designated
"Series A Preferred Stock," and 2,279,831 shares are designated "Series B
Preferred Stock" and 3,804,000 shares are designated "Series C Preferred Stock."
As of the record date of the solicitation of the consent of shareholders at
which this Agreement of Merger was approved, 5,321,433 shares of Common Stock,
4,425,000 shares of Series A Preferred Stock, 2,244,446 shares of Series B
Preferred Stock and 3,504,000 shares of Series C Preferred Stock were issued and
outstanding.
C. The Board of Directors of SkyStream-California has determined that,
for the purpose of effecting the reincorporation of SkyStream-California in the
State of Delaware, it is advisable and in the best interests of
SkyStream-California that SkyStream-California merge with and into
SkyStream-Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors of SkyStream-Delaware and
SkyStream-California have approved this Agreement and have directed that this
Agreement be submitted to a vote of their respective stockholders and executed
by the undersigned officers.
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NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, SkyStream-Delaware and SkyStream-California hereby agree,
subject to the terms and conditions hereinafter set forth, as follows:
I. MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
SkyStream-California shall be merged with and into SkyStream-Delaware (the
"Merger"), the separate existence of SkyStream-California shall cease and
SkyStream-Delaware shall be, and is herein sometimes referred as, the "Surviving
Corporation", and the name of the Surviving Corporation shall be SkyStream
Networks Corporation.
1.2 Filing and Effectiveness. The Merger shall be completed when the
following actions shall have been completed:
(a) This Agreement and Merger was adopted and approved by the
stockholders of each Constituent Corporation in accordance with the requirements
of the Delaware General Corporation Law and the California General Corporation
Law on January 3, 2000 and January 3, 2000, respectively;
(b) All of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied or duly waived by
the party entitled to satisfaction thereof;
(c) An executed Agreement and Plan of Merger meeting the
requirements of the Delaware General Corporation Law shall have been filed with
the Secretary of State of the State of Delaware; and
(d) An executed Certificate of Merger or an executed, acknowledged
and certified counterpart of this Agreement meeting the requirements of the
California Corporations Code shall have been filed with the Secretary of State
of the State of California.
Pursuant to Section 251 of the Delaware General Corporation Law and
Section 1168 of the California Corporations Code, the date and time when the
Merger shall become effective, shall be the date upon which subsections (a), (b)
and (c) of this Section 1.2 are satisfied and as to SkyStream-California on the
day subsection (d) is satisfied, is herein called the "Effective Date of the
Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of SkyStream-California shall cease and SkyStream-Delaware,
as the Surviving Corporation, (i) shall continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the Effective
Date of the Merger, (ii) shall be subject to all actions previously taken by its
and SkyStream-California's Board of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of
SkyStream-California in the manner more fully set forth in Section 259 of the
Delaware General Corporation Law, (iv) shall continue to be subject to all of
the debts, liabilities and obligations of SkyStream-Delaware as constituted
immediately prior to the Effective Date of the Merger, and (v) shall succeed,
without other transfer, to all of the debts,
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liabilities and obligations of SkyStream-California in the same manner as if
SkyStream-Delaware had itself incurred them, all as more fully provided under
the applicable provisions of the Delaware General Corporation Law and the
California Corporations Code.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
SkyStream-Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of SkyStream-Delaware as in effect immediately
prior to the Effective Date of the Merger shall continue in full force and
effect as the Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of
SkyStream-California immediately prior to the Effective Date of the Merger shall
be the directors and officers of the Surviving Corporation until their
successors shall have been duly elected and qualified or until as otherwise
provided by law, the Certificate of Incorporation of the Surviving Corporation
or the Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 SkyStream-California Common Shares. Upon the Effective Date of the
Merger, each share of SkyStream-California Common Stock, no par value, issued
and outstanding immediately prior thereto shall by virtue of the Merger and
without any action by the Constituent Corporations, the holder of such shares or
any other person, be converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $.001 par value, of the Surviving
Corporation. No fractional share interests of Surviving Corporation Common Stock
shall be issued. In lieu thereof, any fractional share interests to which a
holder would otherwise be entitled shall be aggregated.
3.2 SkyStream-California Preferred Shares.
(a) Upon the Effective Date of the Merger, each share of Series A
Preferred, Series B Preferred, and Series C Preferred Stock of
SkyStream-California, no par value, issued and outstanding immediately prior to
the Merger, which shares are convertible into such number of shares of
SkyStream-California Common Stock as set forth in the SkyStream-California
Restated Articles of Incorporation, as amended, shall by virtue of the Merger
and without any action by the Constituent Corporations, the holder of such
shares or any other person, be converted into or exchanged for one fully paid
and nonassessable share of Series A Preferred, Series B Preferred and Series C
Preferred Stock of the Surviving Corporation, $0.001 par value, respectively,
having such rights, preferences and privileges as set forth in the Certificate
of Incorporation of the Surviving Corporation, which share of Preferred Stock
shall be convertible into the same number of shares of the Surviving
Corporation's Common Stock, $0.001 par value, as such share of
SkyStream-California Preferred Stock was so convertible into immediately prior
to the Effective Date of the Merger, subject to adjustment pursuant to the terms
of the Certificate of Incorporation of the Surviving Corporation.
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3.3 SkyStream-California Options, Warrants, Stock Purchase Rights and
Convertible Securities.
(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume the obligations of SkyStream-California under, and continue, the
1996 Stock Option Plan ("Stock Option Plan"),and all other employee benefit
plans of SkyStream-California. Each outstanding and unexercised option, warrant,
other right to purchase, or security convertible into, SkyStream-California
Common Stock or SkyStream-California Preferred Stock (a "Right") shall become,
subject to the provisions in paragraph (c) hereof, an option, warrant, right to
purchase or a security convertible into the Surviving Corporation's Common Stock
or Preferred Stock, respectively, on the basis of one share of the Surviving
Corporation's Common Stock or Preferred Stock, as the case may be, for each one
share of SkyStream-California Common Stock or Preferred Stock, as the case may
be, issuable pursuant to any such Right, on the same terms and conditions and at
an exercise price equal to the exercise price applicable to any such
SkyStream-California Right at the Effective Date of the Merger. This paragraph
3.3(a) shall not apply to SkyStream-California Common Stock or Preferred Stock.
Such Common Stock and Preferred Stock are subject to paragraph 3.1 and 3.2,
respectively, hereof.
(b) A number of shares of the Surviving Corporation's Common Stock
and Preferred Stock shall be reserved for issuance upon the exercise of options,
warrants, stock purchase rights and convertible securities equal to the number
of shares of SkyStream-California Common Stock and SkyStream-California
Preferred Stock so reserved immediately prior to the Effective Date of the
Merger.
(c) The assumed Rights shall not entitle any holder thereof to a
fractional share upon exercise or conversion (unless the holder was entitled to
a fractional interest immediately prior to the Merger). In lieu thereof, any
fractional share interests to which a holder of an assumed Right (other than an
option issued pursuant to SkyStream-California's 1996 Stock Option Plan) would
otherwise be entitled upon exercise or conversion shall be aggregated (but only
with other similar Rights which have the same per share terms). To the extent
that after such aggregation, the holder would still be entitled to a fractional
share with respect thereto upon exercise or conversion, the holder shall be
entitled upon the exercise or conversion of all such assumed Rights pursuant to
their terms (as modified herein), to one full share of Common Stock or Preferred
Stock in lieu of such fractional share. With respect to each class of such
similar Rights, no holder will be entitled to more than one full share in lieu
of a fractional share upon exercise or conversion.
Notwithstanding the foregoing, with respect to options issued under
the SkyStream-California 1996 Stock Option Plan that are assumed in the Merger,
the number of shares of Common Stock to which the holder would be otherwise
entitled upon exercise of each such assumed option following the Merger shall be
rounded down to the nearest whole number and the exercise price shall be rounded
up to the nearest whole cent. In addition, no "additional benefits" (within the
meaning of Section 424(a)(2) of the Internal Revenue Code of 1986, as amended)
shall be accorded to the optionees pursuant to the assumption of their options.
3.4 SkyStream-Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, $.001 par value, of SkyStream-Delaware
issued and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by SkyStream-
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Delaware, the holder of such shares or any other person, be canceled and
returned to the status of authorized but unissued shares.
3.5 Exchange of Certificates. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of
SkyStream-California Common Stock or Preferred Stock may be asked to surrender
the same for cancellation to an exchange agent, whose name will be delivered to
holders prior to any requested exchange (the "Exchange Agent"), and each such
holder shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of the Surviving Corporation's
Common Stock or Preferred Stock, as the case may be, into which the surrendered
shares were converted as herein provided. Until so surrendered, each outstanding
certificate theretofore representing shares of SkyStream-California Common Stock
or Preferred Stock shall be deemed for all purposes to represent the number of
shares of the Surviving Corporation's Common Stock or Preferred Stock,
respectively, into which such shares of SkyStream-California Common Stock or
Preferred Stock, as the case may be, were converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of Common Stock or
Preferred Stock of the Surviving Corporation represented by such outstanding
certificate as provided above.
Each certificate representing Common Stock or Preferred Stock of the
Surviving Corporation so issued in the Merger shall bear the same legends, if
any, with respect to the restrictions on transferability as the certificates of
SkyStream-California so converted and given in exchange therefore, unless
otherwise determined by the Board of Directors of the Surviving Corporation in
compliance with applicable laws.
If any certificate for shares of the Surviving Corporation's stock
is to be issued in a name other than that in which the certificate surrendered
in exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
the Exchange Agent any transfer or other taxes payable by reason of issuance of
such new certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not payable.
IV. GENERAL
4.1 Covenants of SkyStream-Delaware. SkyStream-Delaware covenants and
agrees that it will, on or before the Effective Date of the Merger:
(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for service
of process as required under the provisions of Section 2105 of the California
General Corporation Law.
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(b) File any and all documents with the California Franchise Tax
Board necessary for the assumption by SkyStream-Delaware of all of the franchise
tax liabilities of SkyStream-California.
(c) Take such other actions as may be required by the California
General Corporation Law.
4.2 Further Assurances. From time to time, as and when required by
SkyStream-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of SkyStream-California such deeds and other instruments,
and there shall be taken or caused to be taken by it such further and other
actions as shall be appropriate or necessary in order to vest or perfect in or
conform of record or otherwise by SkyStream-Delaware the title to and possession
of all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of SkyStream-California and otherwise to carry out the
purposes of this Agreement, and the officers and directors of SkyStream-Delaware
are fully authorized in the name and on behalf of SkyStream-California or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
4.3 Abandonment. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either SkyStream-California or of
SkyStream-Delaware, or of both, notwithstanding the approval of this Agreement
by the shareholders of SkyStream-California or by the sole stockholder of
SkyStream-Delaware, or by both.
4.4 Amendment. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Agreement by the stockholders of either Constituent Corporation shall not: (1)
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 Constituent Corporation, (2) alter
or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger, or (3) 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 capital stock of any
Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
of ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and The Corporation Trust Company is the registered
agent of the Surviving Corporation at such address.
4.6 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and copies thereof will be furnished
to any stockholder of either Constituent Corporation, upon request and without
cost.
4.7 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
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4.8 FIRPTA Notification.
(a) On the Effective Date of the Merger, SkyStream-California shall
deliver to SkyStream-Delaware, as agent for the shareholders of
SkyStream-California, a properly executed statement (the "Statement")
substantially in the form attached hereto as Exhibit A. SkyStream-Delaware shall
retain the Statement for a period of not less than seven years and shall, upon
request, provide a copy thereof to any person that was a shareholder of
SkyStream-California immediately prior to the Merger. In consequence of the
approval of the Merger by the shareholders of SkyStream-California, (i) such
shareholders shall be considered to have requested that the Statement be
delivered to SkyStream-Delaware as their agent and (ii) SkyStream-Delaware shall
be considered to have received a copy of the Statement at the request of the
SkyStream-California shareholders for purposes of satisfying
SkyStream-Delaware's obligations under Treasury Regulation Section
1.1445-2(c)(3).
(b) SkyStream-California shall deliver to the Internal Revenue
Service a notice regarding the Statement in accordance with the requirements of
Treasury Regulation Section 1.897-2(h)(2).
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of SkyStream-Delaware and
SkyStream-California is hereby executed on behalf of each of such two
corporations and attested by their respective officers thereunto duly
authorized.
SKYSTREAM CORPORATION
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, President
and Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary
SKYSTREAM NETWORKS CORPORATION
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, President
and Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary
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EXHIBIT A
January 31, 2000
TO THE SHAREHOLDERS OF SKYSTREAM NETWORKS CORPORATION:
In connection with the reincorporation (the "Reincorporation") in
Delaware of SkyStream Corporation, a California corporation (the "Company"),
pursuant to the Agreement and Plan of Merger (the "Agreement") dated as of
January 31, 2000 between the Company and SkyStream Networks Corporation, a
Delaware corporation and wholly-owned subsidiary of the Company
("SkyStream-Delaware"), your shares of Company stock will be replaced by shares
of stock in SkyStream-Delaware.
In order to establish that (i) you will not be subject to tax under
Section 897 of the Internal Revenue Code of 1986, as amended (the "Code"), in
consequence of the Reincorporation and (ii) SkyStream-Delaware will not be
required under Section 1445 of the Code to withhold taxes from the
SkyStream-Delaware stock that you will receive in connection therewith, the
Company hereby represents to you that, as of the date of this letter, shares of
Company stock do not constitute a "United States real property interest" within
the meaning of Section 897(c) of the Code and the regulations issued thereunder.
A copy of this letter will be delivered to SkyStream-Delaware pursuant
to Section 4.8 of the Agreement.
Under penalties of perjury, the undersigned officer of the Company
hereby declares that, to the best knowledge and belief of the undersigned, the
facts set forth herein are true and correct.
Sincerely,
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▇▇▇▇▇ ▇. ▇▇▇▇▇, President and
Chief Executive Officer
