EXHIBIT A
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 2, 2004
AMONG
COGENT COMMUNICATIONS GROUP, INC.,
LUX MERGER SUB, INC.
AND
SYMPOSIUM GAMMA, INC.
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TABLE OF CONTENTS
ARTICLE I. THE MERGER
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1.1 The Merger.
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1.2 Closing.
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1.3 Effective Time.
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1.4 Effects of the Merger.
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1.5 Certificate of Incorporation.
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1.6 Bylaws.
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1.7 Officers and Directors of Surviving Corporation.
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1.8 Tax Consequences.
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ARTICLE II. EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
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CORPORATIONS; EXCHANGE OF CERTIFICATES
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2.1 Effect on Capital Stock.
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ARTICLE III. REPRESENTATIONS AND WARRANTIES
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3.1 Representations and Warranties of the Company.
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3.2 Representations and Warranties of Parent.
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ARTICLE IV. COVENANTS RELATING TO CONDUCT OF BUSINESS
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4.1 Covenants of the Company.
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4.2 Covenants of Parent and Merger Sub.
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ARTICLE V. ADDITIONAL AGREEMENTS
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5.1 Claims for Indemnification.
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5.2 Exculpation.
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5.3 Defense of Third-party Claims.
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5.4 Survival.
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5.5 Tax and Accounting Treatment.
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5.6 Further Assurances.
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ARTICLE VI. CONDITIONS PRECEDENT
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6.1 Conditions to the Obligations of Parent and Merger Sub to Consummate the
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Merger.
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6.2 Conditions to the Obligations of the Company.
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ARTICLE VII. TERMINATION AND LIQUIDATED DAMAGES
7.1 Termination.
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7.2 Effect of Termination.
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7.3 Liquidated Damages.
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ARTICLE VIII. GENERAL PROVISIONS
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8.1 Survival of Representations and Warranties; No Other Representations and
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Warranties.
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8.2 Amendment.
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8.3 Extension; Waiver.
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8.4 Notices.
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8.5 Interpretation.
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8.6 Counterparts.
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8.7 Entire Agreement; Third Party Beneficiaries.
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8.8 Governing Law.
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8.9 Severability.
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8.10 Assignment.
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8.11 Enforcement.
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8.12 Definitions.
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of January 2, 2004 (this
"Agreement"), by and among COGENT COMMUNICATIONS GROUP, INC., a Delaware
corporation ("Parent"), LUX MERGER SUB, INC., a Delaware corporation and a
wholly-owned Subsidiary of Parent ("Merger Sub"), and SYMPOSIUM GAMMA, INC., a
Delaware corporation (the "Company").
W I T N E S S E T H :
WHEREAS, the respective Boards of Directors of Parent, Merger Sub and
the Company have each determined that the Merger (as defined below) is in the
best interests of their respective stockholders and have approved the Merger
upon the terms and subject to the conditions set forth in this Agreement,
whereby each issued and outstanding share of Common Stock, par value $.001 per
share, of the Company ("Company Common Stock"), will be converted into the right
to receive 2.34 shares of Series I Participating Convertible Preferred Stock,
par value $.001 per share, of Parent (the "Parent Preferred Shares");
WHEREAS, in order to effectuate the foregoing, Merger Sub, upon the
terms and subject to the conditions of this Agreement and in accordance with the
Delaware General Corporation Law (the "DGCL"), will merge with and into the
Company (the "Merger");
WHEREAS, immediately prior to the Merger, and as a condition to
Parent's consummation of the Merger, the Company will acquire 100% of the
outstanding capital stock of Firstmark Communications Participations S.a.r.l.
(the "Firstmark Acquisition");
WHEREAS, Parent, Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger; and
WHEREAS, for United States Federal income tax purposes it is intended
that the Merger qualify as a reorganization within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I.
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with Section 251 of the DGCL, Merger
Sub shall be merged with and into the Company at the Effective Time (as defined
below). Following the Merger, the separate corporate existence of Merger Sub
shall cease and the Company shall continue as the surviving corporation (the
"Surviving Corporation") in accordance with the DGCL.
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1.2 Closing. The closing of the Merger (the "Closing") will take
place as soon as practicable after satisfaction or waiver (as permitted by this
Agreement and applicable law) of the conditions (excluding conditions that, by
their terms, cannot be satisfied until the Closing Date) set forth in Article VI
(the "Closing Date"), unless another time or date is agreed to in writing by the
parties hereto. The Closing shall be held at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇., unless another place is agreed to
in writing by the parties hereto.
1.3 Effective Time. Upon the Closing, the parties shall file with the
Secretary of State of the State of Delaware a certificate of merger or other
appropriate documents (in any such case, the "Certificate of Merger") executed
in accordance with the relevant provisions of the DGCL and shall make all other
filings, recordings or publications required under the DGCL in connection with
the Merger. The Merger shall become effective at such time as the Certificate of
Merger is duly filed with the Delaware Secretary of State and the applicable
Parent Preferred Shares shall have been issued to the holders of the Company
Common Stock, or at such other time as the parties may agree and specify in the
Certificate of Merger (the time the Merger becomes effective being the
"Effective Time").
1.4 Effects of the Merger. At and after the Effective Time, the
Merger will have the effects set forth in Section 259 of the DGCL.
1.5 Certificate of Incorporation. The certificate of incorporation of
Merger Sub as in effect immediately prior to the Effective Time shall be the
certificate of incorporation of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law, provided that such
certificate of incorporation shall be amended to reflect "Symposium Gamma, Inc."
as the name of the Surviving Corporation.
1.6 Bylaws. The bylaws of Merger Sub as in effect at the Effective
Time shall be the bylaws of the Surviving Corporation until thereafter changed
or amended as provided therein or by applicable law.
1.7 Officers and Directors of SurvivingCorporation. The officers and
directors of Merger Sub shall be the officers and directors of the Surviving
Corporation until the earlier of their resignation or removal or otherwise
ceasing to be an officer or director or until their respective successors are
duly elected and qualified, as the case may be.
1.8 Tax Consequences. It is intended by the parties hereto that the
Merger qualify as a reorganization described in Section 368(a) of the Code. The
parties hereto adopt this Agreement as a "plan of reorganization" within the
meaning of Sections 1.368-2(g) and 1.368-3 of the United States Income Tax
Regulations.
ARTICLE II.
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
2.1 Effect on Capital Stock. As of the Effective Time, by virtue of
the Merger and without any action on the part of the holder of any shares of
Company Common Stock or any shares of capital stock of Merger Sub:
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(a) Capital Stock of Merger Sub. Each issued and outstanding share of
capital stock of Merger Sub shall be converted into and become one fully paid
and nonassessable share of common stock, par value $0.001 per share, of the
Surviving Corporation.
(b) Cancellation of Treasury Stock and Parent-Owned Stock. Each share
of Company Common Stock that is owned by the Company or by a wholly owned
subsidiary of the Company and each share of Company Common Stock that is owned
by Parent, Merger Sub or any other wholly owned subsidiary of Parent shall
automatically be canceled and retired and shall cease to exist, and no Parent
Preferred Shares or other consideration shall be delivered in exchange therefor.
(c) Conversion of Company Common Stock. Each issued and outstanding
share of Company Common Stock (other than shares to be canceled in accordance
with Section 2.1(b)) shall automatically be converted into the right to receive
2.34 fully paid and nonassessable shares of Parent Preferred Shares. As of the
Effective Time, all such shares of Company Common Stock shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares of Company
Common Stock shall cease to have any rights with respect thereto, except the
right to receive upon the surrender of such certificates, certificates
representing the shares of Parent Preferred Shares.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of theCompany. The Company hereby
represents and warrants to Parent and Merger Sub as follows:
(a) Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and has all requisite corporate power and authority to carry on its
business as now conducted and as proposed to be conducted.
(b) Authorization. The Company has all requisite corporate power and
corporate authority to enter into this Agreement and to consummate the Merger
and the other transactions contemplated hereby. The execution, delivery and
performance by the Company of this Agreement and the consummation by the Company
of the Merger have been duly authorized by all necessary corporate action on the
part of the Company. This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding agreement of the Company,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors generally,
or by general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) Capitalization. The authorized capital stock of the Company
consists, or will consist, immediately prior to the Closing, of 1,200 shares of
Common Stock, of which 11,000.169 shares are issued and outstanding. All of the
issued and outstanding shares of the Company's Common Stock were validly issued
and are fully paid and nonassessable.
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(d) No subscription, warrant, option, convertible security or other
right (contingent or otherwise) to purchase or acquire any shares of capital
stock of the Company is authorized or outstanding, (ii) the Company has no
obligation (contingent or otherwise) to issue any subscription, warrant, option,
convertible security or other such right or to issue or distribute to holders of
any shares of its capital stock any evidences of indebtedness or assets of the
Company or any of its subsidiaries, and (iii) the Company has no obligation
(contingent or otherwise) to purchase, redeem or otherwise acquire any shares of
its capital stock or any interest therein or to pay any dividend or make any
other distribution in respect thereof.
(e) There are no agreements, written or oral, between the Company and
any holder of its capital stock, or among any holders of its capital stock,
relating to the acquisition (including without limitation rights of first
refusal or preemptive rights), disposition, registration under the Securities
Act of 1933, as amended (the "Securities Act"), or voting of the capital stock
of the Company. (f) Subsidiaries. At the Closing, the Company will be the holder
of 100% of the authorized equity capital of Firstmark Communications
Participations S.a.r.l. ("Company Sub"). Except for its interest in Company Sub
and the Subsidiaries of Company Sub set forth on Schedule 3.1(f), the Company
does not own or control, directly or indirectly, any interest in any other
corporation, association, or other business entity.
(g) Corporate Documents. The Certificate and Bylaws of the Company
are in the form provided to counsel for the stockholders of the Company. 3.2
Representations and Warranties of Parent. Except as set forth in the Parent
Disclosure Schedule delivered by Parent to the Company at or prior to the
execution of this Agreement (the "Parent Disclosure Schedule"), Parent
represents nd warrants to the Company as follows:
(a) Organization, Good Standing and Qualification. Parent and Merger
Sub are corporations duly organized, validly existing and in good standing under
the laws of Delaware and each has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted.
(b) Authorization. Each of Parent and Merger Sub has all requisite
corporate power and corporate authority to enter into this Agreement and to
consummate the Merger and the other transactions contemplated hereby. The
execution, delivery and performance by each of Parent and Merger Sub of this
Agreement and the consummation by Parent and Merger Sub of the Merger and the
other transactions contemplated hereby, including, without limitation, the
filing of the Certificate of Designation by Parent and the issuance of the
Parent Preferred Shares have been, and immediately before the date that the
Parent Preferred Shares become convertible the reservation for issuance of all
Conversion Shares (as defined below) issuable upon conversion of the Parent
Preferred Shares will have been, duly authorized by all necessary corporate
action on the part of Parent and Merger Sub and no further consent or
authorization is required by Parent or Merger Sub or their respective boards of
directors or stockholders. This Agreement has been duly executed and delivered
by Parent and Merger Sub and constitutes a valid and binding agreement of Parent
and Merger Sub, enforceable against each of them in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors generally, or by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
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(c) Parent Capitalization.
(i) Immediately prior to the Closing and without giving effect to
the Merger the Parent will have a total authorized capitalization consisting of:
(A) 395,000,000 shares of common stock, par value $.001 (the
"Common Stock") of which (a) 14,228,077 shares are issued and outstanding, (b)
1,490,000 shares remain reserved for issuance pursuant to stock purchase, stock
grant or stock option arrangements for employees, directors or consultants of
the Parent, (c) 1,791,051 shares remain reserved for issuance to holders of
shares of the common stock of Allied Riser, (d) 155,809 shares remain reserved
for issuance pursuant to warrants granted in connection with certain agreements
between Allied Riser and certain landlords relating to building access rights,
(e) 68,199,901 shares are reserved for issuance upon conversion of the Series F
Participating Convertible Preferred Stock of Parent, (f) 254,947,501 shares are
reserved for issuance upon conversion of the Series G Participating Convertible
Preferred Stock of Parent, and (g) 41,539,253 shares are reserved for issuance
upon conversion of the Series H Participating Convertible Preferred Stock of
Parent.
(B) 120,000 shares of the Parent's preferred stock, $.001
par value per share (the "Preferred Stock"), of which (a) 13,999 shares are
authorized but unissued Preferred Stock, (b) 11,000 shares are designated as
Series F Participating Convertible Preferred Stock, all of which are issued and
outstanding, (c) 41,030 shares are designated as Series G Participating
Convertible Preferred Stock, all of which are issued and outstanding, and (d)
54,001 shares are designated as Series H Participating Convertible Preferred
Stock, of which 53,529 shares are issued and outstanding.
(ii) All the outstanding shares of capital stock of the Parent
have been duly authorized, and are validly issued, fully paid and non-assessable
and were issued in compliance with all applicable state and federal laws
concerning the issuance of securities. The Parent Preferred Shares, when issued
and delivered in accordance with the terms hereof, will be (i) duly authorized,
validly issued, fully-paid and non-assessable, (ii) free from all taxes, liens
and charges with respect to the issuance thereof and (iii) entitled to the
rights and preferences set forth in the Certificate of Designation. Such shares
of Common Stock issuable upon conversion of the Parent Preferred Shares, when
issued and delivered upon conversion of any of the Parent Preferred Shares (the
"Conversion Shares"), will be validly issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue thereof, with
the holders being entitled to all rights accorded to a holder of Common Stock.
Immediately before the date that the Parent Preferred Shares become convertible,
there shall have been reserved, free of preemptive rights and other preferential
rights, a sufficient number of authorized but unissued shares of Common Stock to
satisfy the conversion rights of the holders of the Parent Preferred Shares.
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(iii) No options, warrants, subscriptions, convertible
securities, phantom stock, stock appreciation rights or other rights (contingent
or otherwise) of any nature to acquire from the Parent shares of capital stock
or other securities are authorized, issued or outstanding, nor is the Parent
obligated in any other manner to issue shares of its capital stock or other
securities except as contemplated by this Agreement. There are no restrictions
on the transfer of shares of capital stock of the Parent other than those
imposed by relevant federal and state securities laws and as otherwise
contemplated by this Agreement, the Parent's Second Amended and Restated
Stockholders Agreement and the Parent's Third Amended and Restated Registration
Rights Agreement.
(d) No Conflicts.
(i) The execution, delivery and performance of this Agreement by
Parent and the Merger Sub, the performance by Parent and Merger Sub of their
respective obligations hereunder and the consummation by Parent and Merger Sub
of the transactions contemplated hereby will not:
(A) result in a violation of the Certificate of
Incorporation or Bylaws of either Parent or Merger Sub;
(B) conflict with, or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or incremental, additional or varied rights under, any material
agreement, indenture or instrument (including, without limitation, any stock
option, employee stock purchase or similar plan or any employment or similar
agreement) to which Parent, Merger Sub or any Subsidiary of Parent is a party
(including, without limitation, triggering the application of any change of
control or similar provision (whether "single trigger" or "double trigger"), any
right of redemption or conversion or any anti-dilution provision or similar
rights);
(C) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of Parent, Merger Sub or any Subsidiary of Parent;
or
(D) result in a violation of any law, rule, regulation,
order, judgment or decree (including federal and state securities laws and
regulations and the rules and regulations of the American Stock Exchange)
applicable to Parent, Merger Sub or any Subsidiary of Parent or by which any
property or asset of Parent, Merger Sub or any Subsidiary of Parent is bound or
affected.
(ii) Except for the filing of the Certificate of Designation with
the Secretary of State of the State of Delaware, neither Parent nor Merger Sub
is required to obtain any consent, authorization or order of, or make any filing
or registration with, any foreign, federal, state or local government or
governmental agency, department, or body in order for it to execute, deliver or
perform any of its obligations under or contemplated by this Agreement in
accordance with the terms hereof.
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(e) Legal Proceedings. Except as disclosed in the SEC Filings (as
defined below), there is no material legal or governmental proceeding pending
or, to the knowledge of Parent, threatened or contemplated to which Parent is or
may be a party or of which the business or property of Parent is or may be
subject.
(f) No Violations. Except as disclosed in the SEC Filings, Parent is
not in violation of its certificate of incorporation or its by-laws, in
violation of any law, administrative regulation, ordinance or order of any court
or governmental agency, arbitration panel or authority applicable to Parent,
which violation, individually or in the aggregate, would have a material adverse
effect on the business or financial condition of Parent, or in default in any
material respect in the performance of any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness in any indenture, mortgage, deed of trust or any other agreement or
instrument to which Parent is a party or by which Parent is bound or by which
the properties of Parent are bound or affected.
(g) Governmental Permits, Etc. Except as disclosed in the SEC
Filings, Parent has all necessary franchises, licenses, certificates and other
authorizations from any foreign, federal, state or local government or
governmental agency, department, or body that are currently necessary for the
operation of the business of Parent as currently conducted, the absence of which
would have a material adverse effect on the business or operations of Parent.
(h) Financial Statements. Except as disclosed in the SEC Filings, the
financial statements of Parent and the related notes contained in Parent's
Annual Report on Form 10-K for the fiscal year ended December 31, 2002 and its
Quarterly Report on Form 10-Q for the quarter ended September 30, 2003 present
fairly the financial position of Parent as of the dates indicated therein and
its results of operations and cash flows for the periods therein specified. Such
financial statements (including the related notes) have been prepared in
accordance with United States generally accepted accounting principles applied
on a consistent basis throughout the periods therein specified.
(i) Additional Information.
(i) Parent has filed in a timely manner all documents that Parent
was required to file (i) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and (ii) under the Securities Act, as of the date hereof.
The following documents (including all exhibits included therein and financial
statements and schedules thereto and documents incorporated by reference)
(collectively, the "SEC Filings") complied in all material respects with the
requirements of the Exchange Act as of their respective filing dates, and the
information contained therein was true and correct in all material respects as
of the date of such documents, and each of the following documents as of the
date thereof did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading:
(A) Parent's Annual Report on Form 10-K for the fiscal year
ended December 31, 2002 and its Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2003, June 30, 2003 and September 30, 2003; and
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(B) all other documents, if any, filed by Parent with the
Securities and Exchange Commission (the "SEC") since the filing of the Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30, 2003 pursuant to
the reporting requirements of the Exchange Act.
(ii) As of their respective dates, the financial statements of
Parent included in the SEC Filings complied as to form (and will comply as to
form) in all material respects with U.S. generally accepted accounting
principles ("GAAP") and the published rules and regulations of the SEC with
respect thereto. Such financial statements have been prepared in accordance with
GAAP, consistently applied, during the periods involved (except in the case of
unaudited interim statements, to the extent they may exclude footnotes or may be
condensed or summary statements or as otherwise, in each case, may be permitted
by the SEC on Form 10-Q under the Exchange Act) and fairly present in all
material respects the consolidated financial position of Parent as of the dates
thereof and the consolidated results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). Ernst & Young LLP, which has examined certain of
such financial statements, is an independent certified public accounting firm
within the meaning of the Securities Act.
(iii) Since December 31, 2002, except as specified in the SEC
Filings, Parent has not incurred or suffered any liability or obligation,
matured or unmatured, contingent or otherwise, except in the ordinary course of
business and except any such liability or obligation that has not had and could
not reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the business or financial condition of Parent. Without
limiting the foregoing, except as specified in the SEC Filings, Parent has no
material liabilities or obligations that would reasonably be expected to be
disclosed in order to comply with Section 13(j) of the Exchange Act or any
proposed rules promulgated by the SEC thereunder, including the rules regarding
contractual commitments and contingent liabilities and commitments proposed in
SEC Release No. 33-8144; 34-46767.
(j) No General Solicitation. Neither Parent, nor any of its
affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of
the Parent Preferred Shares.
(k) No Integrated Offering. Neither Parent, nor any of its
affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would require registration of the
Parent Preferred Shares under the Securities Act or cause this offering of the
Parent Preferred Shares to be integrated with prior offerings by Parent for
purposes of the Securities Act or any applicable stockholder approval
provisions, including, without limitation, under the rules and regulations of
the American Stock Exchange, nor will Parent or any of its subsidiaries take any
action or steps that would require registration of the Parent Preferred Shares
under the Securities Act or cause the offering of the Parent Preferred Shares to
be integrated with other offerings.
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(l) Internal Accounting Controls. Parent maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset and liability accountability, (iii)
access to assets or incurrence of liability is permitted only in accordance with
management's general or specific authorization and (iv) the reported
accountability for its assets is compared with existing assets at reasonable
intervals.
(m) Private Placement. The offer, sale and issuance of the Parent
Preferred Shares as contemplated by this Agreement is exempt from the
registration requirements of the Securities Act and all applicable state
securities laws.
(o) Merger Sub Business Activities. Merger Sub is not a party to any
material agreements and has not conducted any activities other than in
connection with the organization of Merger Sub, the negotiation and execution of
this Agreement and the consummation of the Merger. Merger Sub has no
Subsidiaries.
(p) Corporate Documents. The Certificate and Bylaws of the Parent are
in the form provided to counsel for the stockholders of the Company.
(q) Tax Treatment. The Merger will qualify as a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended
(the "Code").
ARTICLE IV.
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1 Covenants of the Company. The Company agrees and covenants to use
its best efforts to cause the consummation of the Merger and further agrees and
covenants not to take any action that is inconsistent with its obligations under
this Agreement in any material respect that could reasonably be expected to
hinder or delay the consummation of the Merger.
4.2 Covenants of Parent and Merger Sub.
(a) Certificate of Designation. Prior to the Closing, the Parent
shall file with the Secretary of State of the State of Delaware a certificate of
designation in the form set forth on Exhibit A hereto setting forth the rights
and preferences of the Parent Preferred Shares (the "Certificate of
Designation").
(b) Other Actions. Parent and Merger Sub agree and covenant to use
their best efforts to cause the consummation of the Merger and further agree and
covenant not to take any action that is inconsistent with their obligations
under this Agreement in any material respect that could reasonably be expected
to hinder or delay the consummation of the Merger.
(c) Reservation of Conversion Shares. From and after the Closing and
for so long as any Parent Preferred Shares are outstanding, Parent covenants and
agrees to continue to reserve, free of preemptive rights and other preferential
rights, a sufficient number of its previously authorized but unissued shares of
its Common Stock to satisfy the rights of conversion of the holders of the
Parent Preferred Shares.
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(d) Additional Post-Closing Covenants. Parent and Merger Sub shall
use their respective best endeavors to procure, as promptly as possible after
Closing, that (a) the Certificate of Incorporation of Parent be amended to amend
the terms of each sub-series of Parent's Series G Participating Convertible
Preferred Stock and Parent's Series H Participating Convertible Preferred Stock
to provide that the issuance of the Parent Preferred Shares or the conversion of
such shares into Common Stock shall not result in a change in the Conversion
Price of such preferred stock as that term is defined in the respective
Certificates of Designations, Preferences and Relative, Participating, Optional
and Other Special Rights and Qualifications, Limitations and Restrictions, (b)
the Third Amended and Restated Registration Rights Agreement, dated July 31,
2003, be amended to provide that the holders of the Parent Preferred Shares
shall be afforded the same rights and benefits as are granted to the Investors
Purchasers thereunder, (c) the Second Amended and Restated Stockholders
Agreement, dated July 31, 2003, be amended to provide that (i) the holders of
the Parent Preferred Shares shall be afforded the same rights and benefits as
are granted to the Purchasers thereunder, (ii) the Board of Directors of Parent
shall at all times consist of nine members, (iii) the holders of the Parent
Preferred Shares shall be entitled to appoint one member to the Board of
Directors of Parent, and (iv) the holders of the Parent Preferred Shares shall
be entitled to appoint one representative to act as an observer to the Board of
Directors of Parent, (d) a representative of the holders of the Parent Preferred
Shares be appointed to the Board of Directors of Parent, and (e) a
representative of the holders of the Parent Preferred Shares be appointed as an
observer to the Board of Directors of Parent.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Claims for Indemnification.
(a) Parent shall indemnify and hold harmless, prior to the Merger,
each holder of Company Common Stock, and following the Merger, each holder of
Parent Preferred Stock, and such holder's respective officers, directors,
employees, agents, partners, representatives, subsidiaries, affiliates and
permitted successors and assigns from and against, and promptly reimburse for,
any and all loss, diminution in value, damage, cost, expense (including court
costs and reasonable attorneys' fees and costs of investigation), fine, penalty,
suit, action, claim, deficiency, liability or obligation (collectively,
"Losses") caused by or arising from (i) any breach by Parent or Merger Sub of
any representation, warranty or other provision set forth in this Agreement,
(ii) any breach by LNG Holdings, S.A. of any representation, warranty or other
provision set forth in that certain Stock Purchase Agreement dated as of the
date hereof by and between the Company and LNG Holdings, S.A. (the "Stock
Purchase Agreement"), (iii) any and all claims of third parties made based upon
facts alleged that, if true, would constitute any breach set forth in clauses
(i) or (ii) above, or (iv) any claims by third parties relating to the Firstmark
Acquisition or the Merger.
(b) The representations, warranties, covenants and agreements
contained in this Agreement shall not be affected by any party hereto or by
anyone on behalf of any such party: (i) investigating, verifying or examining
any matters with respect to Parent or Merger Sub or the transactions
contemplated hereby; (ii) having the opportunity to investigate, verify or
examine any matters related to Parent or Merger Sub or the transactions
contemplated hereby; or (iii) failing to determine or discover any facts which
were determinable or discoverable by any such party. All rights contained in
this Agreement are cumulative and are in addition to all other rights and
remedies that are otherwise available pursuant to the terms of this Agreement or
applicable law.
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5.2 Exculpation. Parent and Merger Sub agree with the Company that
each of Parent and Merger Sub and their agents, advisors, assigns, and
successors, as applicable, fully and generally agree to waive, release, remise,
acquit, and discharge prior to the Merger, each holder of Company Common Stock
and after the Merger, each holder of Parent Preferred Stock and each of their
affiliates and their respective present or former officers, directors, partners,
joint ventures and successors and assigns (collectively, the "Releasees") and
covenant not to ▇▇▇ or otherwise institute or cause to be instituted or in any
way participate in (except at the request of the applicable Releasee) any legal
or other proceedings or actions against any Releasee with respect to any matter
whatsoever arising out of or relating to this Agreement or the Stock Purchase
Agreement, including, but not limited to any and all liabilities, claims,
demands, contracts, debts, obligations, and causes of action of every nature,
kind and description, in law, equity, or otherwise, whether or not now known or
ascertained, which heretofore do, or hereafter may, exist. This Section 5.2
shall not apply to any fraudulent act by a Releasee or with respect to a breach
of any representation, warranty or other provision of the Company set forth in
this Agreement or the Stock Purchase Agreement.
5.3 Defense of Third-party Claims. With respect to each third-party
claim subject to Section 5.1 (a "Third-party Claim"), the party seeking
indemnification (the "Indemnified Party") shall give prompt notice to Parent of
the Third-party Claim, provided that failure to give such notice promptly shall
not relieve or limit the obligations of Parent except to the extent Parent is
prejudiced thereby. Parent, at its sole cost and expense, may, upon notice of
the Third-party Claim, assume the defense of the Third-party Claim. If it
assumes the defense of a Third-party Claim, then Parent shall select counsel
reasonably satisfactory to the Indemnified Party to conduct the defense. Parent
shall not consent to a settlement of, or the entry of any judgment arising from,
any Third-party Claim, unless (i) the settlement or judgment is solely for money
damages and Parent admits in writing its liability to hold the Indemnified Party
harmless from and against any losses, damages, expense and liabilities arising
out of such settlement or (ii) the Indemnified Party consents thereto, which
consent shall not be unreasonably withheld and, in the case of either clause (i)
or clause (ii), the settlement contains an unconditional release of the
Indemnified Party with respect to the Third-party Claim from each Person
asserting such claim and does not contain an admission of fault on the part of
the Indemnified Party. Parent shall provide the Indemnified Party with fifteen
(15) days prior notice before it consents to a settlement of, or the entry of a
judgment arising from, any Third-party Claim. The Indemnified Party shall be
entitled to participate in the defense of any Third-party Claim, the defense of
which is assumed by Parent, with its own counsel and at its own expense. With
respect to Third-party Claims in which the remedy sought is not solely money
damages, (i) Parent shall, upon notice to the Indemnified Party within fifteen
(15) days after Parent receives notice of the Third-party Claim, be entitled to
participate in the defense with its own counsel at its own expense and (ii) the
Indemnified Party shall not consent to any settlement of, or entry of any
judgment arising from, such Third-party Claim unless Parent consents thereto,
which consent shall not be unreasonably withheld. If Parent does not elect to
assume or participate in the defense of any Third-party Claim in accordance with
the terms of this Section, then Parent shall be bound by the results obtained by
the Indemnified Party with respect to the Third-party Claim. The parties shall
cooperate in the defense of any Third-party Claim and the relevant records of
each party shall be made available on a timely and reasonable basis.
13
5.4 Survival. All representations, warranties, covenants and
agreements of Parent and the Company contained herein shall survive the
execution and delivery of this Agreement and the consummation of the Merger and
the other transactions contemplated hereby.
5.5 Tax and Accounting Treatment. Each of Parent, Merger Sub and the
Company shall not take any action and shall not fail to take any action which
action or failure to act would prevent, or would be likely to prevent, the
Merger from qualifying as a reorganization within the meaning of Section 368(a)
of the Code, other than making payments pursuant to Section 5.1 of this
Agreement. If amounts paid with respect to indemnity claims under this Agreement
or amounts paid pursuant to section 7.3 of this Agreement are treated as income
to a holder of Parent Preferred Stock, then the amount required to be paid under
this Agreement shall be paid on a net after-tax basis.
5.6 Further Assurances. In case at any time after the Effective Time
any further action is reasonably necessary to carry out the purposes of this
Agreement, the proper officers of the Company, Parent and Merger Sub shall take
any such reasonably necessary action.
ARTICLE VI.
CONDITIONS PRECEDENT
6.1 Conditions to the Obligations of Parent and Merger Sub to
Consummate the Merger. The obligation of Parent and Merger Sub to consummate the
Merger is subject to the satisfaction or written waiver by Parent, on or before
the Closing, of the following conditions:
(a) The representations and warranties of the Company contained in
Article III shall be true, complete and correct in all material respects on and
as of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
(b) The Company shall have performed and complied with all covenants
agreements contained herein required to be performed or complied with by it
prior to or at the Closing.
(c) The Firstmark Acquisition shall have been completed.
(d) The Company shall have obtained all necessary consents of and
made all required filings with any governmental authority or agency or third
party required to be obtained prior to the Closing under applicable law and
relating to the Merger.
(e) The Company shall have delivered to Parent (1) resolutions
approved by the Board of Directors of the Company authorizing the Merger and in
full force and effect at the time of Closing, (2) resolutions approved by the
Company's stockholders approving the Merger and in full force and effect at the
time of Closing, and (3) a good standing certificate with respect to the Company
from the Secretary of State of the State of Delaware dated a recent date before
the Closing.
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(f) No temporary restraining order, preliminary or permanent
injunctions or other order issued by any court of competent jurisdiction or
other legal or regulatory restraint or provision challenging the Merger shall be
in effect, nor shall any proceeding brought by an administrative agency or
commission or other governmental authority or instrumentality seeking any of the
foregoing be pending.
6.2 Conditions to the Obligations of the Company. The obligation of
the Company to consummate the Merger is subject to the satisfaction, on or
before the Closing, of the following conditions:
(a) The representations and warranties of Parent and Merger Sub
contained in Article III shall be true, complete and correct in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
(b) Parent and Merger Sub shall have performed and complied with all
covenants and agreements contained herein required to be performed or complied
with by them prior to or at the Closing.
(c) The Firstmark Acquisition shall have been completed.
(d) Parent and Merger Sub, as the case may be, shall have obtained
all necessary consents of and made all required filings with any governmental
authority or agency or third party required to be obtained prior to the Closing
under applicable law and relating to the consummation of the Merger and the
other transactions contemplated hereby.
(e) Parent shall have delivered to the Company (1) a copy of the
Certificate of Designation, certified by the Secretary of State of the State of
Delaware, (2) resolutions approved by the Board of Directors of Parent and
Merger Sub authorizing the Merger and in full force and effect at the time of
Closing, and (3) good standing certificates with respect to Parent and Merger
Sub from the Secretary of State of the State of Delaware dated a recent date
before the Closing.
(f) No temporary restraining order, preliminary or permanent
injunctions or other order issued by any court of competent jurisdiction or
other legal or regulatory restraint or provision challenging the Merger and the
other transactions contemplated hereby shall be in effect, nor shall any
proceeding brought by an administrative agency or commission or other
governmental authority or instrumentality seeking any of the foregoing be
pending.
(g) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have delivered an opinion regarding
the authorization and issuance of the Parent Preferred Stock to the Company and
each of the Holders of the Company Common Stock in form and substance reasonably
acceptable to such holders.
15
ARTICLE VII.
TERMINATION AND LIQUIDATED DAMAGES
7.1 Termination. This Agreement may be terminated at any time prior
to the Effective Time:
(a) By mutual written consent of Parent and the Company;
(b) By either the Company or Parent by providing written notice to
the other if the Merger shall not have been consummated by the date which is 30
days from the date of this Agreement; provided further that the right to
terminate this Agreement under this Section 7.1(b) shall not be available to any
party whose failure to fulfill any obligation under this Agreement has been the
cause of, or resulted in, the failure of the Merger to occur on or before such
date;
(c) By either the Company or Parent by providing written notice to
the other if any Governmental Entity shall have issued an order, decree or
ruling or taken any other action permanently restraining, enjoining or otherwise
prohibiting the Merger (each a "Restraint"), and such order, decree, ruling or
other action shall have become final and non-appealable; provided, however, that
the party seeking to terminate this Agreement pursuant to this Section 7.1(c)
shall have used its reasonable best efforts to resist, resolve or lift, as
applicable, such Restraint and to prevent such Restraint from becoming final and
non-appealable.
7.2 Effect of Termination. In the event of termination of this
Agreement by either the Company or Parent as provided in Section 7.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of Parent, Merger Sub or the Company or their respective
officers or directors. Notwithstanding the foregoing, nothing in this Section
7.2 shall be deemed to release any party from any liability for any willful
breach of any representation, warranty, covenant or obligation contained in this
Agreement. This Section 7.2 shall survive any termination of this Agreement.
7.3 Liquidated Damages. If after the Closing, any of the actions
referred to in Section 4.2(d) shall not have been accomplished on or before June
30, 2004, Parent shall, upon written demand by a majority of the holders of the
Parent Preferred Shares, pay to the holders of the Parent Preferred Shares on a
pro rata basis an aggregate of One Million Dollars ($1,000,000) as liquidated
damages. The parties agree in advance that actual damages, costs or expenses
would be difficult to ascertain and that the liquidated damages provided for
hereunder is a fair and equitable amount to reimburse the holders of the Parent
Preferred Shares for damages sustained due to Buyer's failure to accomplish the
actions referred to in Section 4.2(d) and is not a penalty in either case.
ARTICLE VIII.
GENERAL PROVISIONS
8.1 Survival of Representations and Warranties; No Other
Representations and Warranties. The representations and warranties of Parent
shall survive the Closing. Each party hereto agrees that, except for the
representations and warranties contained in this Agreement, none of the Company,
Parent or Merger Sub makes any other representations or warranties, and each
hereby disclaims any other representations and warranties made by itself or any
of its officers, directors, employees, agents, financial and legal advisors or
other representatives, with respect to the execution and delivery of this
Agreement, the documents and the instruments referred to herein, or the Merger
or thereby, notwithstanding the delivery or disclosure to the other party or the
other party's representatives of any documentation or other information with
respect to any one or more of the foregoing.
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8.2 Amendment. This Agreement may be amended by the parties hereto,
by action taken or authorized by their respective Boards of Directors, at any
time before or after approval of the matters presented in connection with the
Merger by the stockholders of the Company and Parent, but, after any such
approval, no amendment shall be made which by law or in accordance with the
rules of the American Stock Exchange requires further approval by such
stockholders without such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
8.3 Extension; Waiver. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party. No delay on
the part of any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party hereto of any right, power or privilege hereunder operate as a waiver
of any other right, power or privilege hereunder, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege hereunder. Unless otherwise provided, the rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies which
the parties hereto may otherwise have at law or in equity. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
8.4 Notices. Any notice, request, claim, demand, waiver, consent,
approval or other communication which is required or permitted hereunder shall
be in writing and shall be deemed given if delivered personally, by facsimile
transmission with receipt of delivery (one business day after confirmation in
the case of transmissions to non-U.S. residents), or sent by registered or
certified mail, postage prepaid, return receipt requested, or by internationally
recognized overnight courier service (two business days after deposit with such
overnight courier service in the case of deliveries to non-U.S. residents), as
follows:
(a) if to Parent or Merger Sub, to:
Cogent Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
17
(b) if to the Company, to:
c/o Cogent Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
8.5 Interpretation. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a Section of or
Exhibit or Schedule to this Agreement unless otherwise indicated. The table of
contents, glossary of defined terms and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden or proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statue or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the content requires otherwise. It is understood
and agreed that neither the specifications of any dollar amount in this
Agreement nor the inclusion of any specific item in the Schedules or Exhibits is
intended to imply that such amounts or higher or lower amounts, or the items so
included or other items, are or are not material, and neither party shall use
the fact of setting of such amounts or the fact of the inclusion of such item in
the Schedules or Exhibits in any dispute or controversy between the parties as
to whether any obligation, item or matter is or is not material for purposes
hereof.
8.6 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
8.7 Entire Agreement; Third Party Beneficiaries. This Agreement
(including the Schedules and Exhibits) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof, other than. This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, except for the
provisions of Article 2, is intended to or shall confer upon any other Person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
8.8 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without regard to the laws
that might be applicable under conflicts of laws principles.
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8.9 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the Merger is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the Merger are consummated as
originally contemplated to the greatest extent possible. Any provision of this
Agreement held invalid or unenforceable only in part, degree or certain
jurisdictions will remain in full force and effect to the extent not held
invalid or unenforceable. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
8.10 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other parties, and any attempt to make any such
assignment without such consent shall be null and void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
8.11 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
8.12 Definitions. As used in this Agreement:
(a) "Board of Directors" means the Board of Directors of any
specified Person and any properly serving and acting committees thereof.
(b) "Organizational Documents" means, with respect to any entity, the
certificate of incorporation, bylaws or other governing documents of such
entity.
(c) "Person" means an individual, corporation, partnership, limited
liability company association, trust, unincorporated organization, entity or
group (as defined in the Exchange Act).
(d) "Subsidiary" when used with respect to any party means any
corporation or other organization, whether incorporated or unincorporated, (i)
of which such party or any other Subsidiary of such party is a general partner
(excluding partnerships, the general partnership interests of which held by such
party or any Subsidiary of such party do not have a majority of the voting and
economic interests in such partnership) or (ii) at least a majority of the
securities or other interests of which having by their terms ordinary voting
power to elect a majority of the Board of Directors or others performing similar
functions with respect to such corporation or other organization is directly or
indirectly owned or controlled by such party or by any one or more of its
Subsidiaries, or by such party and one or more of its Subsidiaries.
(e) "the other party" means, with respect to the Company, Parent and
means, with respect to Parent, the Company.
19
IN WITNESS WHEREOF, Parent, the Company and Merger Sub have caused
this Agreement to be signed by their respective officers thereunto duly
authorized, all as of January 2, 2004.
COGENT COMMUNICATIONS GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
LUX MERGER SUB, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
SYMPOSIUM GAMMA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
20
Parent Disclosure Schedule
Parent has outstanding options to purchase up to 1,600 shares of Common Stock,
warrants convertible into 103,776 shares of Common Stock and notes convertible
into 21,329 shares of its Common Stock.