{"id":43042,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-concentric-network-corp-de-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-concentric-network-corp-de-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-concentric-network-corp-de-and.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Concentric Network Corp. (DE) and Concentric Network Corp. (FL)"},"content":{"rendered":"<pre>\n                         AGREEMENT AND PLAN OF MERGER\n                       OF CONCENTRIC NETWORK CORPORATION\n                            A DELAWARE CORPORATION,\n                                      AND\n                         CONCENTRIC NETWORK CORPORATION\n                             A FLORIDA CORPORATION\n\n\n     THIS AGREEMENT AND PLAN OF MERGER dated as of July __,1997 (the\n'Agreement') is between Concentric Network Corporation, a Delaware corporation\n('CNC Delaware'), and Concentric Network Corporation, a Florida corporation\n('CNC Florida').  CNC Delaware and CNC Florida are sometimes referred to herein\nas the 'Constituent Corporations.'\n\n\n                                    RECITALS\n\n     A.  CNC Delaware is a corporation duly organized and existing under the\nlaws of the State of Delaware and has 41,000,000 shares, $.001 par value, of\nauthorized capital stock of which 24,000,000 shares are designated 'Common\nStock', 1,000,000 are designated 'Series A Preferred Stock', 915,156 are\ndesignated 'Series B Preferred Stock', 933,334 are designated 'Series C\nPreferred Stock', and 4,533,334 are designated 'Series D Preferred Stock', and\n9,618,176 shares are undesignated Preferred Stock.  As of July __, 1997, 1,000\nshares of Common Stock were issued and outstanding, all of which are held by CNC\nFlorida, and no shares of Preferred Stock were issued and outstanding.\n\n     B.  CNC Florida is a corporation duly organized and existing under the laws\nof the State of Florida and has 615,000,000 shares, $0.01 par value, of\nauthorized capital stock of which 360,000,000 shares are designated 'Common\nStock', 15,000,000 shares are designated 'Series A Preferred Stock', 13,727,328\nare designated 'Series B Preferred Stock', 14,000,000 shares are designated\n'Series C Preferred Stock', and 68,000,000 shares are designated 'Series D\nPreferred Stock', and 144,272,672 shares are undesignated Preferred Stock.  As\nof July __, 1997, 30,381,307 shares of Common Stock, 13,703,542 shares of Series\nA Preferred Stock, 6,504,520 shares of Series B Preferred Stock, 13,923,638\nshares of Series C Preferred Stock and 43,998,714 shares of Series D Preferred\nStock, were issued and outstanding.\n\n     C.  The Board of Directors of CNC Florida has determined that, for the\npurpose of effecting the reincorporation of CNC Florida in the State of\nDelaware, it is advisable and in the best interests of CNC Florida and its\nshareholders that CNC Florida merge with and into CNC Delaware upon the terms\nand conditions herein provided.\n\n     D.  The respective Boards of Directors of CNC Delaware and CNC Florida have\napproved this Agreement and have directed that this Agreement be submitted to a\nvote of their respective shareholders and executed by the undersigned officers.\n\n     NOW, THEREFORE, in consideration of the mutual agreements and covenants set\nforth herein, CNC Delaware and CNC Florida hereby agree, subject to the terms\nand conditions hereinafter set forth, as follows:\n\n \n                                       I\n\n                                     MERGER\n\n     1.1  Merger.  In accordance with the provisions of this Agreement, the\nDelaware General Corporation Law and the Florida Business Corporation Act, CNC\nFlorida shall be merged with and into CNC Delaware (the 'Merger'), the separate\nexistence of CNC Florida shall cease and CNC Delaware shall survive the Merger\nand shall continue to be governed by the laws of the State of Delaware, and CNC\nDelaware shall be, and is herein sometimes referred to as, the 'Surviving\nCorporation,' and the name of the Surviving Corporation shall be Concentric\nNetwork Corporation.\n\n     1.2  Filing and Effectiveness.  The Merger shall become effective when the\nfollowing actions shall have been completed:\n\n          (a) This Agreement and the Merger shall have been adopted and approved\n     by the shareholders of each Constituent Corporation in accordance with the\n     requirements of the Delaware General Corporation Law and the Florida\n     Business Corporation Act;\n\n          (b) All of the conditions precedent to the consummation of the Merger\n     specified in this Agreement shall have been satisfied or duly waived by the\n     party entitled to satisfaction thereof; and\n\n          (c) An executed Certificate of Merger or an executed, acknowledged and\n     certified counterpart of this Agreement meeting the requirements of the\n     Delaware General Corporation Law shall have been filed with the Secretary\n     of State of the State of Delaware.\n\n     The date and time when the Merger shall become effective, as aforesaid, is\nherein called the 'Effective Date of the Merger.'\n\n     1.3  Effect of the Merger.  Upon the Effective Date of the Merger, the\nseparate existence of CNC Florida shall cease and CNC Delaware, as the Surviving\nCorporation, (i) shall continue to possess all of its assets, rights, powers and\nproperty as constituted immediately prior to the Effective Date of the Merger,\n(ii) shall be subject to all actions previously taken by its and CNC Florida's\nBoards of Directors, (iii) shall succeed, without other transfer, to all of the\nassets, rights, powers and property of CNC Florida in the manner as more fully\nset forth in Section 259 of the Delaware General Corporation Law, (iv) shall\ncontinue to be subject to all of its debts, liabilities and obligations as\nconstituted immediately prior to the Effective Date of the Merger, and (v) shall\nsucceed, without other transfer, to all of the debts, liabilities and\nobligations of CNC Florida in the same manner as if CNC Delaware had itself\nincurred them, all as more fully provided under the applicable provisions of the\nDelaware General Corporation Law and the Florida Business Corporation Act.\n\n                                      -2-\n\n \n                                       II\n\n                   CHARTER DOCUMENTS, DIRECTORS AND OFFICERS\n\n     2.1  Certificate of Incorporation.  Upon the effectiveness of the Merger,\nthe Certificate of Incorporation of CNC Delaware as in effect immediately prior\nto the effective Date of the Merger shall continue in full force and effect as\nthe Certificate of Incorporation of the Surviving Corporation until duly amended\nin accordance with the provisions thereof and applicable law.\n\n     2.2  Bylaws.  The Bylaws of CNC Delaware as in effect immediately prior to\nthe Effective Date of the Merger shall continue in full force and effect as the\nBylaws of the Surviving Corporation until duly amended in accordance with the\nprovisions thereof and applicable law.\n\n     2.3  Directors and Officers.  The directors and officers of CNC Delaware\nimmediately prior to the Effective Date of the Merger shall be the directors and\nofficers of the Surviving Corporation until their respective successors shall\nhave been duly elected and qualified or until as otherwise provided by law, or\nthe Certificate of Incorporation of the Surviving Corporation or the Bylaws of\nthe Surviving Corporation.\n\n                                      III\n\n                       MANNER OF CONVERSION OF SECURITIES\n\n     3.1  CNC Florida Common Stock.  Upon the Effective Date of the Merger, each\nfifteen shares of CNC Florida Common Stock, $0.01 par value, outstanding\nimmediately prior thereto shall, by virtue of the Merger and without any action\nby the Constituent Corporations, the holder of such shares or any other person,\nbe changed and converted into and exchanged for one fully paid and nonassessable\nshare of Common Stock, $0.001 par value, respectively, of the Surviving\nCorporation.\n\n     3.2  CNC Florida Preferred Stock.  Upon the Effective Date of the Merger,\neach fifteen shares of CNC Florida Series A Preferred Stock, $0.01 par value,\nSeries B Preferred Stock, $0.01 par value, Series C Preferred Stock $0.01 par\nvalue and Series D Preferred Stock $0.01 par value, issued and outstanding\nimmediately prior thereto shall, by virtue of the Merger and without any action\nby the Constituent Corporations, the holder of such shares or any other person,\nbe changed and converted into and exchanged for one fully paid and nonassessable\nshare of Series A Preferred Stock, $0.001 par value, Series B Preferred Stock,\n$0.001 par value Series C Preferred Stock, $0.001 par value or Series D\nPreferred Stock, $0.001 par value, respectively, of the Surviving Corporation.\n\n     3.3  CNC Florida Options, Warrants and Convertible Securities.  Upon the\nEffective Date of the Merger, the Surviving Corporation shall assume and\ncontinue the obligations of CNC Florida under option plans of CNC Florida and\nall other employee benefit plans of CNC Florida, including outstanding stock\noptions of CNC Florida.  Each outstanding and unexercised option, warrant or\nother right to purchase or security convertible into CNC Florida Common Stock or\nPreferred Stock shall become an \n\n                                      -3-\n\n \noption, warrant, right to purchase or a security convertible into the Surviving\nCorporation's Common Stock or Preferred Stock, respectively, on the basis of one\nshare of the Surviving Corporation's Common Stock or Preferred Stock for each\nfifteen shares of CNC Florida Common Stock or Preferred Stock, respectively,\nissuable pursuant to any such option, warrant, right to purchase or convertible\nsecurity, on the same terms and conditions and at an exercise price per share\nequal to fifteen times the exercise price applicable to such CNC Florida option,\nwarrant, right to purchase or a security convertible at the Effective Date of\nthe Merger.\n\n     A number of shares of the Surviving Corporation's Common Stock or Preferred\nStock, as the case may be, shall be reserved for issuance upon the exercise of\noptions, warrants, stock purchase rights or convertible securities equal to the\nnumber of shares of CNC Florida Common Stock and Preferred Stock so reserved\nimmediately prior to the Effective Date of the Merger.\n\n     3.4  Fractional Shares.  No fractional shares shall be issued by the\nSurviving Corporation upon the conversion of any share of Common Stock,\nPreferred Stock or any stock option, warrant, stock purchase right or\nconvertible security of CNC Florida into Common Stock, Preferred Stock or any\nstock option, warrant, stock purchase right or convertible security,\nrespectively, of the Surviving Corporation. If the conversion would result in\nthe issuance of a fractional share of Common Stock, Preferred Stock or any stock\noption, warrant, stock purchase right or convertible security , the Surviving\nCorporation shall, in lieu of issuing the fractional share, pay the holder\notherwise entitled to such fraction a sum in cash equal to the fair market value\nof such fraction on the date of conversion (as determined in good faith by the\nBoard of Directors of the Corporation).\n\n     3.5  CNC Delaware Common Stock.  Upon the Effective Date of the Merger,\neach share of Common Stock, $.001 par value, of CNC Delaware issued and\noutstanding immediately prior thereto shall, by virtue of the Merger and without\nany action by CNC Delaware, the holder of such shares or any other person, be\ncanceled and returned to the status of authorized but unissued shares.\n\n     3.6  Exchange of Certificates.  After the Effective Date of the Merger,\neach holder of an outstanding certificate representing shares of CNC Florida\nCommon Stock or Preferred Stock may, at such shareholder's option, surrender the\nsame for cancellation to the transfer agent and registrar for the Common Stock\nof the Surviving Corporation, as exchange agent (the 'Exchange Agent'), and each\nsuch holder shall be entitled to receive in exchange therefor a certificate or\ncertificates representing the number of shares of the appropriate class and\nseries of the Surviving Corporation's capital stock into which the surrendered\nshares were converted as herein provided.  Until so surrendered, each\noutstanding certificate theretofore representing shares of CNC Florida capital\nstock shall be deemed for all purposes to represent the number of whole shares\nof the appropriate class and series of the Surviving Corporation's capital stock\ninto which such shares of CNC Florida capital stock were converted in the\nMerger.\n\n     The registered owner on the books and records of the Surviving Corporation\nor the Exchange Agent of any shares of stock represented by such outstanding\ncertificate shall, until such certificate shall have been surrendered for\ntransfer or conversion or otherwise accounted for to the Surviving Corporation\nor the Exchange Agent, have and be entitled to exercise any voting and other\nrights with respect to and \n\n                                      -4-\n\n \nto receive dividends and other distributions upon the shares of capital stock of\nthe Surviving Corporation represented by such outstanding certificate as\nprovided above.\n\n     Each certificate representing capital stock of the Surviving Corporation so\nissued in the Merger shall bear the same legends, if any, with respect to the\nrestrictions on transferability as the certificates of CNC Florida so converted\nand given in exchange therefor, unless otherwise determined by the Board of\nDirectors of the Surviving Corporation in compliance with applicable laws.\n\n     If any certificate for shares of CNC Delaware stock is to be issued in a\nname other than that in which the certificate surrendered in exchange therefor\nis registered, it shall be a condition of issuance thereof that the certificate\nso surrendered shall be properly endorsed and otherwise in proper form for\ntransfer, that such transfer otherwise be proper and that the person requesting\nsuch transfer pay to CNC Delaware or the Exchange Agent any transfer or other\ntaxes payable by reason of the issuance of such new certificate in a name other\nthan that of the registered holder of the certificate surrendered or establish\nto the satisfaction of CNC Delaware that such tax has been paid or is not\npayable.\n\n                                       IV\n\n                                    GENERAL\n\n     4.1  Covenants of CNC Delaware.  CNC Delaware covenants and agrees that it\nwill, on or before the Effective Date of the Merger:\n\n          (a) Qualify to do business as a foreign corporation in the State of\n     California and in connection therewith irrevocably appoint an agent for\n     service of process as required under the provisions of Section 2105 of the\n     California Corporations Code;\n\n          (b) File any and all documents with the appropriate Florida tax\n     authorities necessary for the assumption by CNC Delaware of all of the\n     franchise tax liabilities of CNC Florida; and\n\n          (c) Take such other actions as may be required by the Florida Business\n     Corporation Act.\n\n     4.2  Further Assurances.  From time to time, as and when required by CNC\nDelaware or by its successors or assigns, there shall be executed and delivered\non behalf of CNC Florida such deeds and other instruments, and there shall be\ntaken or caused to be taken by CNC Delaware and CNC Florida such further and\nother actions, as shall be appropriate or necessary in order to vest or perfect\nin or conform of record or otherwise by CNC Delaware the title to and possession\nof all the property, interests, assets, rights, privileges, immunities, powers,\nfranchises and authority of CNC Florida and otherwise to carry out the purposes\nof this Agreement, and the officers and directors of CNC Delaware are fully\nauthorized in the name and on behalf of CNC Florida or otherwise to take any and\nall such action and to execute and deliver any and all such deeds and other\ninstruments.\n\n                                      -5-\n\n \n     4.3  Abandonment.  At any time before the filing of this Agreement with the\nSecretary of State of the State of Delaware, this Agreement may be terminated\nand the Merger may be abandoned for any reason whatsoever by the Board of\nDirectors of either CNC Florida or CNC Delaware, or both, notwithstanding the\napproval of this Agreement by the shareholders of CNC Florida or by the sole\nstockholder of CNC Delaware, or by both.\n\n     4.4  Amendment.  The Boards of Directors of the Constituent Corporations\nmay amend this Agreement at any time prior to the filing of this Agreement (or\ncertificate in lieu thereof) with the Secretaries of State of the States of\nFlorida and Delaware, provided that an amendment made subsequent to the adoption\nof this Agreement by the shareholders of either Constituent Corporation shall\nnot: (1) alter or change the amount or kind of shares, securities, cash,\nproperty and\/or rights to be received in exchange for or on conversion of all or\nany of the shares of any class or series thereof of such Constituent\nCorporation, (2) alter or change any term of the Certificate of Incorporation of\nthe Surviving Corporation to be effected by the Merger, or (3) alter or change\nany of the terms and conditions of this Agreement if such alteration or change\nwould adversely affect the holders of any class of shares or series thereof of\nsuch Constituent Corporation.\n\n     4.5  Registered Office.  The registered office of the Surviving Corporation\nin the State of Delaware is located at 15 East North Street, Dover, Delaware\n19901, County of Kent and Incorporation Services Ltd. is the registered agent of\nthe Surviving Corporation at such address.\n\n     4.6  Agreement.  Executed copies of this Agreement will be on file at the\nprincipal place of business of the Surviving Corporation at 10590 N. Tantau\nAvenue, Cupertino, California 95014 and copies thereof will be furnished to any\nshareholder of either Constituent Corporation, upon request and without cost.\n\n     4.7  Governing Law.  This Agreement shall in all respects be construed,\ninterpreted and enforced in accordance with and governed by the laws of the\nState of Delaware and, so far as applicable, the merger provisions of the\nFlorida Business Corporation Act.\n\n     4.8  Counterparts.  In order to facilitate the filing and recording of this\nAgreement, the same may be executed in any number of counterparts, each of which\nshall be deemed to be an original and all of which together shall constitute one\nand the same instrument.\n\n                                      -6-\n\n \n     IN WITNESS WHEREOF, this Agreement and Plan of Merger, having first been\napproved by resolutions of the Boards of Directors of CNC Delaware and CNC\nFlorida, is hereby executed on behalf of each of such two corporations and\nattested by their respective officers thereunto duly authorized.\n\n                                    CONCENTRIC NETWORK CORPORATION\n                                    a Delaware corporation\n\n\n                                    By:  ______________________________________\n                                         Henry R. Nothhaft\n                                         President and Chief Executive Officer\n \nATTEST:\n\n\n________________________________\nMichael F. Anthofer\nSenior Vice President and Chief \nFinancial Officer\n\n\n\n                                    CONCENTRIC NETWORK CORPORATION\n                                    a Florida corporation\n\n\n                                    By:  _____________________________________\n                                         Henry R. Nothhaft\n                                         President and Chief Executive Officer\n\n\nATTEST:\n\n\n_______________________________ \nMichael F. Anthofer\nSenior Vice President and Chief \nFinancial Officer\n\n                                      -7-\n\n \n                         CONCENTRIC NETWORK CORPORATION\n                            (a Florida Corporation)\n\n                             OFFICERS' CERTIFICATE\n\n\nHenry R. Nothhaft and Michael F. Anthofer certify that:\n\n     1.   They are the President, Chief Executive Officer and Senior Vice\nPresident, Chief Financial Officer, respectively, of Concentric Network\nCorporation, a corporation organized under the laws of the State of Florida.\n\n     2.   The corporation has authorized two classes of stock, designated\n'Common Stock' and 'Preferred Stock.'\n\n     3.   There are 30,381,307 shares of Class A Common Stock, 13,703,542 shares\nof Series A Preferred Stock, 6,504,520 shares of Series B Preferred Stock,\n13,923,638 shares of Series C and 43,998,714 shares of Series D Preferred Stock\nissued and outstanding as of July _____, 1997, the Filing Date for the Agreement\nand Plan of Merger attached hereto (the 'Merger Agreement').  All shares of\nClass A Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series\nC Preferred Stock and Series D Preferred Stock are entitled to vote on the\nmerger.\n\n     4.   The principal terms of the Merger Agreement were approved by the Board\nof Directors and by the vote of a number of shares of each class and series of\nstock that equaled or exceeded the vote required.\n\n     5.   The percentage vote required was greater than 50% of the votes\nentitled to be cast by holders of all shares of Class A Common Stock, Series A\nPreferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D\nPreferred Stock outstanding as June 9, 1997, voting together as a single class.\n\n     6.   The undersigned further declare under penalty of perjury under the\nlaws of the State of Florida that each has read the foregoing certificate and\nknows the contents thereof and that the same is true of their own knowledge.\n\n                                      -8-\n\n \n                                   SIGNATURES\n\n\n     Executed in Cupertino, California, on ____________ __, 1997.\n\n\n\n\n                                    _______________________________________\n                                    Henry R. Nothhaft\n                                    President and Chief Executive Officer\n\n\n\n                                    \n                                    _________________________________________\n                                    Michael F. Anthofer\n                                    Senior Vice President and Chief Financial\n                                    Officer\n\n\n \n\n                    SIGNATURE PAGE FOR OFFICERS' CERTIFICATE\n                                  CNC FLORIDA\n\n                                      -9-\n\n \n                         CONCENTRIC NETWORK CORPORATION\n                            (Surviving Corporation)\n\n                             OFFICERS' CERTIFICATE\n\n\nHenry R. Nothhaft and Michael F. Anthofer certify that:\n\n     1.   They are the President, Chief Executive Officer and Senior Vice\nPresident, Chief Financial Officer, respectively, of Concentric Network\nCorporation, a corporation organized under the laws of the State of Delaware.\n\n     2.   The corporation has authorized two classes of stock, designated\n'Common Stock' and 'Preferred Stock.'\n\n     3.   There are 1,000 shares of Common Stock outstanding and entitled to\nvote on the Agreement and Plan of Merger attached hereto (the 'Merger\nAgreement').  There are no shares of Preferred Stock outstanding.\n\n     4.   The principal terms of the Merger Agreement were approved by the Board\nof Directors and by the vote of 100% of the outstanding shares of Common Stock\nof the Corporation.\n\n     5.   The percentage vote required was more than 50% of the votes entitled\nto be cast by holders of outstanding shares of Common Stock.\n\n     6.   The undersigned further declare under penalty of perjury under the\nlaws of the State of Delaware that each has read the foregoing certificate and\nknows the contents thereof and that the same is true of their own knowledge.\n\n                                     -10-\n\n \n                                   SIGNATURES\n\n\n     Executed in Cupertino, California, on ___________ __, 1997.\n\n\n \n\n                                    _____________________________________   \n                                    Henry R. Nothhaft\n                                    President and Chief Executive Officer\n\n\n\n        \n                                    _________________________________________\n                                    Michael F. Anthofer\n                                    Senior Vice President and Chief Financial\n                                    Officer\n\n\n\n                    SIGNATURE PAGE FOR OFFICERS' CERTIFICATE\n                                  CNC DELAWARE\n\n                                     -11-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7174],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9622,9626],"class_list":["post-43042","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-concentric-network-corp","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43042","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43042"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43042"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43042"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43042"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}