{"id":43048,"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-earthlink-network-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-earthlink-network-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-earthlink-network-inc.html","title":{"rendered":"Agreement and Plan of Merger &#8211; EarthLink Network Inc."},"content":{"rendered":"<pre>                          AGREEMENT AND PLAN OF MERGER\n                         AMONG EARTHLINK NETWORK, INC.,\n                             A DELAWARE CORPORATION\n                                 DOLPHIN, INC.,\n                          A DELAWARE CORPORATION, AND\n                               DOLPHIN SUB, INC.,\n                             A DELAWARE CORPORATION\n                                        \n\n     THIS AGREEMENT AND PLAN OF MERGER DATED AS OF FEBRUARY 10, 1998 (THE\n'AGREEMENT') IS AMONG EARTHLINK NETWORK, INC., A DELAWARE CORPORATION\n('EARTHLINK'), DOLPHIN, INC., A DELAWARE CORPORATION ('NEWCO'), AND DOLPHIN SUB\nINC., A DELAWARE CORPORATION AND A WHOLLY-OWNED SUBSIDIARY OF DOLPHIN ('NEWCO\nSUB'). EARTHLINK AND NEWCO SUB ARE SOMETIMES REFERRED TO HEREIN AS THE\n'CONSTITUENT CORPORATIONS.'\n\n                                R E C I T A L S\n                                ---------------\n\n     A.  EarthLink is a corporation duly organized and existing under the laws\nof the State of Delaware and has an authorized capital of sixty million\n(60,000,000) shares, fifty million (50,000,000) of which are designated as\ncommon stock, $.01 par value per share (the 'EarthLink Common Stock'), and ten\nmillion (10,000,000) of which are designated as preferred stock, $.01 par value\nper share.\n\n     B.  Newco is a corporation duly organized and existing under the laws of\nthe State of Delaware and has an authorized capital of seventy-five million\n(75,000,000) shares, fifty million (50,000,000) of which are designated as\ncommon stock, $.01 par value per share (the 'Newco Common Stock'), and twenty-\nfive million (25,000,000) of which are designated as preferred stock, $.01 par\nvalue per share (the 'Newco Preferred Stock').  As of February 10, 1998, ten\n(10) shares of Newco Common Stock were issued and outstanding (the 'Newco\nSubscription Shares') and no shares of Newco Preferred Stock were issued and\noutstanding.\n\n     C.  Newco Sub is a corporation duly organized and existing under the laws\nof the State of Delaware and has an authorized capital of sixty million\n(60,000,000) shares, fifty million (50,000,000) of which are designated as\ncommon stock, $.01 par value per share (the 'Newco Sub Common Stock'), and ten\nmillion (10,000,000) of which are designated as preferred stock, $.01 par value\nper share.  As of February 10, 1998, ten (10) shares of Newco Sub Common Stock\nwere issued and outstanding, all of which were held by Newco.\n\n     D.  The Boards of Directors of EarthLink and Newco Sub have determined that\nit is advisable and in the best interests of EarthLink and Newco Sub,\nrespectively, that Newco Sub merge with and into EarthLink upon the terms and\nconditions herein provided.\n\n     E.  The Boards of Directors of each of EarthLink, Newco and Newco Sub have\napproved this Agreement and the transactions contemplated hereby and directed\nthat this Agreement be executed by the respective undersigned officers of each\nof those corporations.\n\n                                       1\n\n \n     F.  The Boards of Directors of EarthLink and Newco Sub have directed that\nthis Agreement be submitted to a vote of their respective stockholders with the\nrecommendation that such stockholders approve the Agreement and the transactions\ncontemplated hereby.\n\n     NOW, THEREFORE, in consideration of the mutual agreements and covenants set\nforth herein, EarthLink, Newco and Newco Sub hereby agree, subject to the terms\nand conditions hereinafter set forth, as follows:\n\n                                   I.  MERGER\n\n     1.1  Merger.  In accordance with the provisions of this Agreement and the\n          ------                                                              \nDelaware General Corporation Law, Newco Sub shall be merged with and into\nEarthLink (the 'Merger'), the separate existence of Newco Sub shall cease and\nEarthLink shall be, and is herein sometimes referred to as, the 'Surviving\nCorporation,' and the name of the Surviving Corporation shall be EarthLink\nOperations, Inc.  Upon the Effective Date of the Merger (as defined below),\nNewco shall file a change of name amendment to its Certificate of Incorporation,\nwhereby it shall assume the name 'EarthLink Network, Inc.'\n\n     1.2  Filing and Effectiveness.  The Merger shall become effective when the\n          ------------------------                                             \nfollowing actions shall have been completed:\n\n     (a) This Agreement and Merger shall have been adopted and approved by the\nstockholders of each of the Constituent Corporations in accordance with the\nrequirements of the Delaware General Corporation Law; and\n\n     (b) An executed Certificate of Merger or an executed counterpart of this\nAgreement meeting the requirements of the Delaware General Corporation Law shall\nhave been filed with the Secretary 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 Time of the Merger.'\n\n     1.3  Effect of the Merger.  Upon the Effective Time of the Merger, the\n          --------------------                                             \nseparate existence of Newco Sub shall cease and EarthLink, as the Surviving\nCorporation, (i) shall continue to possess all of its assets, rights, powers and\nproperty as constituted immediately prior to the Effective Time of the Merger,\n(ii) shall be subject to all actions previously taken by its and Newco Sub's\nBoard of Directors, (iii) shall succeed, without other transfer, to all of the\nassets, rights, powers and property of Newco Sub in the manner more fully set\nforth in Section 259 of the Delaware General Corporation Law, (iv) shall\ncontinue to be subject to all of the debts, liabilities and obligations of Newco\nSub in the same manner as if EarthLink had itself incurred them, all as more\nfully provided under the applicable provisions of the Delaware General\nCorporation Law.\n\n                                       2\n\n \n                 II.  CHARTER DOCUMENTS, DIRECTORS AND OFFICERS\n\n     2.1  Certificate of Incorporation.  The Certificate of Incorporation of\n          ----------------------------                                      \nNewco Sub as in effect immediately prior to the Effective Time of the Merger\nshall continue in full force and effect as the Certificate of Incorporation of\nthe Surviving Corporation until duly amended in accordance with the provisions\nthereof and applicable law.  The Certificate of Incorporation of Newco Sub is\nattached hereto as Appendix A.\n                   -------- - \n\n     2.2  Bylaws.  The Bylaws of Newco Sub as in effect immediately prior to the\n          ------                                                                \nEffective Time 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.  The Bylaws of Newco Sub are attached\nhereto as Appendix B.\n          -------- - \n\n     2.3  Directors and Officers.  The directors and officers of EarthLink\n          ----------------------                                          \nimmediately prior to the Effective Time of the Merger shall be the directors and\nofficers of each of Newco and the Surviving Corporation until their successors\nshall have been duly elected and qualified or until as otherwise provided by\nlaw, the Certificate of Incorporation or the Bylaws of Newco or of the Surviving\nCorporation, respectively.\n\n                      III.  MANNER OF CONVERSION OF STOCK\n\n     3.1  Newco Sub Common Stock.  Upon the Effective Time of the Merger, the\n          ----------------------                                             \nshares of Newco Sub Common Stock issued and outstanding immediately prior\nthereto shall, by virtue of the Merger and without any action by the Constituent\nCorporations, the holder of such shares or any other person, be converted into\nand exchanged for such number of fully paid and nonassessable shares of common\nstock of the Surviving Corporation as is equal to the number of shares of\nEarthLink Common Stock outstanding at the Effective Time of the Merger.\n\n     3.2  EarthLink Common Stock.  Upon the Effective Time of the Merger, each\n          ----------------------                                              \nshare of EarthLink Common Stock issued and outstanding immediately prior thereto\nshall by virtue of the Merger and without any action by the Constituent\nCorporations, the holder of such shares or any other person, be converted into\nand exchanged for one fully paid and nonassessable share of Newco Common Stock.\n\n     3.3  Newco Subscription Shares.  Upon the Effective Time of the Merger, the\n          -------------------------                                             \nNewco Subscription Shares shall be canceled and thereafter held as treasury\nstock of Newco.\n\n     3.4  EarthLink Options, Stock Purchase Rights and Convertible Securities.\n          ------------------------------------------------------------------- \n\n     (a) Upon the Effective Time of the Merger, to the extent permitted by the\nterms of such instruments as in effect at the Effective Time of the Merger,\nNewco shall assume the obligations of EarthLink under any and all securities,\nwarrants, calls, rights to purchase, rights of first refusal, securities\nconvertible into or exchangeable for voting securities, commitments, agreements,\narrangements or undertakings of any kind to which EarthLink is a party or by\nwhich it is bound obligating EarthLink to issue, deliver or sell or create, or\n\n                                       3\n\n \ncause to be issued, delivered or sold or created, additional shares of the\ncapital stock of or other voting securities or phantom stock or other\ncontractual rights the value of which is determined in whole or in part by the\nvalue of any capital stock of EarthLink, or obligating EarthLink to issue,\ngrant, extend or enter into any such security, option, warrant, call, right,\ncommitment, agreement, arrangement, or undertaking (collectively, the 'Dilutive\nSecurities') on the same terms and conditions as were in effect immediately\nprior to the Merger; thereafter, each such Dilutive Security shall become,\nsubject to the provisions in paragraph (c) hereof, an option, right to purchase\nor a security convertible into Newco Common Stock on the basis of one share of\nNewco Common Stock for each one share of EarthLink Common Stock issuable\npursuant to any such Dilutive Security, on the same terms and conditions and at\nan exercise price equal to the exercise price applicable to any such Dilutive\nSecurity at the Effective Time of the Merger.\n\n     (b) A number of shares of Newco Common Stock shall be reserved for issuance\nupon the exercise of options, stock purchase rights and convertible securities\nequal to the number of shares of EarthLink Common Stock so reserved immediately\nprior to the Effective Date of the Merger.\n\n     (c) The assumed Rights shall not entitle any holder thereof to a fractional\nshare upon exercise or conversion (unless the holder was entitled to a\nfractional interest immediately prior to the Merger).  In lieu thereof, any\nfractional share interests to which a holder of an assumed Right (other than an\noption issued pursuant to EarthLink's 1995 Stock Option Plan, as amended) would\notherwise be entitled upon exercise or conversion shall be aggregated (but only\nwith other similar Rights which have the same per share terms).  To the extent\nthat after such aggregation the holder would still be entitled to a fractional\nshare with respect thereto upon exercise or conversion, the holder shall be\nentitled, upon the exercise or conversion of all such assumed Rights pursuant to\ntheir terms (as modified herein), to one full share of common stock in lieu of\nsuch fractional share.  With respect to each class of such similar Rights, no\nholder will be entitled to more than one full share in lieu of a fractional\nshare upon exercise or conversion.\n\n     3.5  Stock Certificates.\n          ------------------ \n\n          (a) Upon the Effective Time of the Merger, each outstanding\ncertificate theretofor representing shares of EarthLink Common Stock shall be\ndeemed for all purposes to represent the number of shares of Newco Common Stock\ninto which such shares of EarthLink Common Stock were converted in the Merger.\nThe registered owner of shares of EarthLink Common Stock on the books and\nrecords of EarthLink shall be entitled, as of the Effective Time of the Merger,\nto exercise any voting and other rights with respect to, and receive dividends\nand other distributions upon, the shares of Newco Common Stock represented by\nsuch outstanding certificate as provided above.\n\n          (b) Upon the Effective Time of the Merger, Newco, the sole stockholder\nof Newco Sub, shall surrender the outstanding certificate representing shares of\nNewco Sub to the Surviving Corporation in exchange for a certificate or\ncertificates representing the number of shares of common stock of the Surviving\nCorporation into which the surrendered shares were converted as herein provided.\nSuch certificate for shares of common stock of the Surviving\n\n                                       4\n\n \nCorporation shall bear the same legends, if any, with respect to the\nrestrictions on transferability as the certificate of Newco Sub so converted and\ngiven in exchange therefor, unless otherwise determined by the Board of\nDirectors of the Surviving Corporation in compliance with applicable laws.\n\n                                  IV.  GENERAL\n\n     4.1  Assurances.  From time to time, as and when required by the parties\n          ----------                                                         \nhereto or by their successors or assigns, there shall be executed and delivered\non behalf of the parties hereto such deeds and other instruments, and there\nshall be taken or caused to be taken by it such further and other actions as\nshall be appropriate or necessary in order to vest or perfect in or conform of\nrecord or otherwise by the parties hereto the title to and possession of all the\nproperty, interests, assets, rights, privileges, immunities, powers, franchises\nand authority of the parties hereto and otherwise to carry out the purposes of\nthis Agreement, and the officers and directors of the parties hereto are fully\nauthorized in the name and on behalf of such parties or otherwise to take any\nand all such action and to execute and deliver any and all such deeds and other\ninstruments.\n\n     4.2  Abandonment.  At any time before the Effective Time of the Merger,\n          -----------                                                       \nthis Agreement may be terminated and the Merger may be abandoned for any reason\nwhatsoever by the Board of Directors of any of EarthLink, Newco or Newco Sub,\nnotwithstanding the approval of this Agreement by the stockholders of EarthLink\nor by the sole stockholder of Newco or Newco Sub.\n\n     4.3  Amendment.  Subject to the Investment Agreement dated February 10,\n          ---------                                                         \n1998, by and among EarthLink, Newco, Newco Sub, Sprint Corporation and Sprint\nCommunications Company L.P., the Boards of Directors of the Constituent\nCorporations may amend this Agreement at any time prior to the filing of this\nAgreement (or certificate in lieu thereof) with the Secretary of State of the\nState of Delaware, provided that an amendment made subsequent to the adoption of\nthis Agreement by the stockholders of either Constituent Corporation shall not:\n(i) alter or change the amount or kind of shares, securities, cash, property\nand\/or rights to be received in exchange for or in conversion of all or any of\nthe shares of any class or series thereof of either of the Constituent\nCorporations, (ii) alter or change any term of the Certificate of Incorporation\nof the Surviving Corporation to be effected by the Merger, or (iii) alter or\nchange any of the terms and conditions of this Agreement if such alteration or\nchange would adversely affect the holders of any class or series of capital\nstock of either of the Constituent Corporations.\n\n     4.4  Registered Office.  The registered office of the Surviving Corporation\n          -----------------                                                     \nin the State of Delaware is 1209 Orange Street, Wilmington, DE 19801 and The\nCorporation Trust Company is the registered agent of the Surviving Corporation\nat such address.\n\n     4.5  Agreement.  Executed copies of this Agreement will be on file at the\n          ---------                                                           \nprincipal place of business of the Surviving Corporation at 3100 New York Drive,\nSuite 201, Pasadena, California 91107, and copies thereof will be furnished to\nany stockholder of either Constituent Corporation, upon request and without\ncost.\n\n                                       5\n\n \n     4.6  Governing Law.  This Agreement shall in all respects be construed,\n          -------------                                                     \ninterpreted and enforced in accordance with and governed by the laws of the\nState of Delaware.\n\n     4.7  Counterparts.  In order to facilitate the filing and recording of this\n          ------------                                                          \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\n     IN WITNESS WHEREOF, this Agreement having first been approved by the\nresolutions of the Board of Directors of EarthLink Network, Inc., a Delaware\ncorporation, Dolphin, Inc., a Delaware corporation, Dolphin Sub, Inc., a\nDelaware corporation, and is hereby executed on behalf of each such corporations\nand attested by their respective officers thereunto duly authorized.\n\n\n                                             EARTHLINK NETWORK, INC.\n                                             a Delaware corporation\n\n\n                                             By:_______________________________\n                                                     Sky D. Dayton, Chairman\n\nATTEST:\n\n___________________________\nKirsten Hansen, Secretary\n\n\n \n                                             DOLPHIN, INC.\n                                             a Delaware corporation\n\n\n                                             By:_______________________________\n                                                     Sky D. Dayton, Chairman\n\nATTEST:\n\n_______________________________\nKirsten Hansen, Secretary\n\n\n\n                    [SIGNATURES CONTINUED ON FOLLOWING PAGE]\n\n                                       6\n\n \n                                             DOLPHIN SUB, INC.\n                                             a Delaware corporation\n\n\n                                             By:_______________________________\n                                                     Sky D. Dayton, Chairman\n\nATTEST:\n\n_______________________________\nKirsten Hansen, Secretary\n\n                                       7\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7397],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9622,9626],"class_list":["post-43048","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-earthlink-inc","corporate_contracts_industries-technology__programming","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\/43048","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=43048"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43048"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43048"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43048"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}