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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF ABOVENET COMMUNICATIONS INC.,
A DELAWARE CORPORATION
AND
ABOVENET COMMUNICATIONS INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of September __, 1998, (the
"Agreement"), is between AboveNet Communications Inc., a Delaware corporation
("AboveNet Communications Inc.-Delaware") and AboveNet Communications Inc., a
California corporation ("AboveNet Communications Inc.-California"). AboveNet
Communications Inc.-Delaware and AboveNet Communications Inc.-California are
sometimes referred to herein as the "Constituent Corporations."
R E C I T A L S
A. AboveNet Communications Inc.-Delaware is a corporation duly
organized and existing under the laws of the State of Delaware. As of [RECORD
DATE], 1998, and as of the date of this Agreement, 1,000 shares of Common Stock
of AboveNet Communications Inc.-Delaware are issued and outstanding, all of
which are held by AboveNet Communications Inc.-California. No shares of
Preferred Stock are issued and outstanding.
B. AboveNet Communications Inc.-California is a corporation duly
organized and existing under the laws of the State of California and has an
authorized capital stock of 85,000,000 shares, 50,000,000 of which are
designated "Common Stock," and 35,000,000 of which are designated "Preferred
Stock." Of such authorized shares of Preferred Stock, 4,100,000 shares are
designated as Series A Preferred Stock, 7,100,000 shares are designated as
Series B Preferred Stock, 8,100,000 are designated as Series C Preferred Stock,
8,500,000 shares are designated Series D Preferred Stock, and 7,000,000 shares
are designated Series E Preferred Stock. As of [RECORD DATE], 1998, 4,085,268
shares of Common Stock, 2,040,000 shares of Series A Preferred Stock, 2,333,334
shares of Series B Preferred Stock, 1,176,471 shares of Series C Preferred
Stock, 939,927 shares of Series D Preferred Stock and __________ shares of
Series E Preferred Stock were issued and outstanding.
C. The Board of Directors of AboveNet Communications Inc.-California
has determined that, for the purpose of effecting the reincorporation of
AboveNet Communications Inc.-California in the State of Delaware, it is
advisable and in the best interests of AboveNet Communications Inc.-California
that AboveNet Communications Inc.-California merge with and into AboveNet
Communications Inc.-Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors of AboveNet Communications
Inc.-Delaware and AboveNet Communications Inc.-California have approved this
Agreement and have directed that this Agreement be submitted to a vote of their
respective sole stockholder and shareholders, and executed by the undersigned
officers.
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E. AboveNet Communications Inc.-Delaware is a wholly owned subsidiary
of AboveNet Communications Inc.-California.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, AboveNet Communications Inc.-Delaware and AboveNet
Communications Inc.-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 Corporations Code, AboveNet
Communications Inc.-California shall be merged with and into AboveNet
Communications Inc.-Delaware (the "Merger"), the separate existence of AboveNet
Communications Inc.-California shall cease and AboveNet Communications
Inc.-Delaware shall be, and is herein sometimes referred to as, the "Surviving
Corporation," and the name of the Surviving Corporation shall be "AboveNet
Communications Inc."
1.2 Filing and Effectiveness. The Merger shall become effective when
the following actions shall have been completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the shareholders of AboveNet Communications Inc.-California and the
sole stockholder of AboveNet Communications Inc.-Delaware in accordance with the
requirements of the Delaware General Corporation Law and the California
Corporations Code;
(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; and
(c) An executed Certificate of Ownership and Merger or an executed
counterpart of this Agreement meeting the requirements of the Delaware General
Corporation Law shall have been filed with the Secretary of State of the State
of Delaware.
The date and time when the Merger shall become effective, as aforesaid,
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 AboveNet Communications Inc.-California shall cease and
AboveNet Communications Inc.-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 AboveNet Communications
Inc.-California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of AboveNet
Communications Inc.-California, including all shares of any subsidiary held by
AboveNet Communications Inc.-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 AboveNet
Communications Inc.-California as constituted immediately prior to the Effective
Date of the
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Merger, and (v) shall succeed, without other transfer, to all of the debts,
liabilities and obligations of AboveNet Communications Inc.-California in the
same manner as if AboveNet Communications Inc.-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
AboveNet Communications Inc.-Delaware 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 AboveNet Communications Inc.-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 AboveNet
Communications Inc.-Delaware 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 Amended and Restated Certificate of Incorporation
of the Surviving Corporation or the Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 AboveNet Communications Inc.-California Common Shares. Upon the
Effective Date of the Merger, each share of AboveNet Communications
Inc.-California Common Stock issued and outstanding immediately prior to the
Merger shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such share or any other person, be converted into
and exchanged for 0.4 of a fully paid and nonassessable share of Common Stock,
par value $0.001 per share, of the Surviving Corporation. No fractional share
interests of the Surviving Corporation's Common Stock shall be issued but shall,
instead, be rounded down to the nearest whole share.
3.2 AboveNet Communications Inc.-California Preferred Shares. Upon the
Effective Date of the Merger each share of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E
Preferred Stock, respectively, of AboveNet Communications Inc.-California issued
and outstanding immediately prior to the Merger shall, by virtue of the Merger
and without any action by the Constituent Corporations, the holder of such share
or any other person, be converted into or exchanged for, as the case may be, 0.4
of a fully paid and nonassessable share of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E
Preferred Stock of the Surviving Corporation, par value $0.001 per share. The
rights, preferences and privileges of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E
Preferred Stock of the Surviving Corporation are as set forth in the
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Certificate of Incorporation of the Surviving Corporation. No fractional share
interests of the Surviving Corporation's Preferred Stock shall be issued but
shall, instead, be rounded down to the nearest whole.
3.3 AboveNet Communications Inc.-California 1996 and 1997 Stock Option
Plans, as Amended.
(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume the obligations of AboveNet Communications Inc.-California under
its 1996 and 1997 Stock Option Plans, as amended (the "Plans"). Each outstanding
and unexercised option to purchase one (1) share of Common Stock of AboveNet
Communications Inc.-California (an "Option") under the 1996 and 1997 Plans, and
any options to purchase Common Stock issued and outstanding that were not issued
under either of the Plans, shall be converted into, subject to the provisions in
paragraph (b) of this Section 3.3, an option to purchase 0.4 of a share of the
Surviving Corporation's Common Stock (a "New Option") provided the exercise
price for such options shall be increased to twice the original exercise price
and the aggregate number of shares issuable upon exercise of such New Options
shall be rounded down to the nearest whole number;
(b) Following the Effective Date of the Merger, the number of shares
of the Surviving Corporation's Common Stock to which an Option holder would be
otherwise entitled upon exercise of New Option shall be rounded down to the
nearest whole number. 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 Warrant. Upon the effective Date of the Merger, the Surviving
Corporation shall assume the obligations of AboveNet Communications
Inc.-California, under its issued and outstanding warrants to purchase Series D
Preferred Stock, Series B Preferred Stock and Common Stock ("Warrants"). The
number of shares issuable upon exercise of the Warrants shall be adjusted such
that each (1) share of Series D Preferred Stock, Series B Preferred Stock or
Common stock issuable upon exercise of the Warrant, as the case may be, shall be
converted into Warrants to purchase 0.4 of a share of Series D Preferred Stock,
Series B Preferred Stock or Common Stock, as the case may be; provided that the
exercise price for such Warrant shall be increased to twice the original
exercise price and the aggregate number of shares issuable upon exercise of such
Warrants shall be rounded down to the nearest whole number.
3.5 AboveNet Communications Inc.-Delaware Common Stock. Upon the
Effective Date of the Merger, each share of Common Stock, par value $0.001 per
share, of AboveNet Communications Inc.-Delaware issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by AboveNet Communications Inc.-Delaware, the holder of such shares or any other
person, be canceled and returned to the status of authorized but unissued
shares.
3.6 Exchange of Certificates. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of AboveNet
Communications
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Inc.-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 AboveNet Communications
Inc.-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 AboveNet Communications
Inc.-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
AboveNet Communications Inc.-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, or other such
additional legends as agreed upon by the holder and the Surviving Corporation.
If any certificate for shares of AboveNet Communications Inc.-Delaware
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 AboveNet Communications Inc.-Delaware that such tax has been
paid or is not payable.
IV. GENERAL
4.1 Covenants of AboveNet Communications Inc.-Delaware. AboveNet
Communications Inc.-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
Corporations Code.
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(b) File any and all documents with the California Franchise Tax
Board necessary for the assumption by AboveNet Communications Inc.-Delaware of
all of the franchise tax liabilities of AboveNet Communications Inc.-California.
(c) Take such other actions as may be required by the California
Corporations Code.
4.2 Further Assurances. From time to time, as and when required by
AboveNet Communications Inc.-Delaware or by its successors or assigns, there
shall be executed and delivered on behalf of AboveNet Communications
Inc.-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
AboveNet Communications Inc.-Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of AboveNet Communications Inc.-California and otherwise to carry
out the purposes of this Agreement, and the officers and directors of AboveNet
Communications Inc.-Delaware are fully authorized in the name and on behalf of
AboveNet Communications Inc.-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 AboveNet Communications
Inc.-California or of AboveNet Communications Inc.-Delaware, or of both,
notwithstanding the approval of this Agreement by the shareholders of AboveNet
Communications Inc.-California.
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 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ and Incorporating Services, Inc. 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.
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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 California.
4.8 Counterparts. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of AboveNet Communications Inc.-Delaware
and AboveNet Communications Inc.-California is hereby executed on behalf of each
of such two corporations and attested by their respective officers thereunto
duly authorized.
ABOVENET COMMUNICATIONS INC.,
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Operating Officer
ATTEST:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
ABOVENET COMMUNICATIONS INC.,
a California corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Operating Officer
ATTEST:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
