EXHIBIT 2.5
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AGREEMENT AND PLAN OF MERGER
Dated as of February 6, 1998,
Between
PRIMESTAR, INC.
And
COMCAST DBS, INC.
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TABLE OF CONTENTS
Page
Parties and Recitals ................................................ 1
ARTICLE I
The Merger
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SECTION 1.01. The Merger........................................... 1
SECTION 1.02. Closing.............................................. 2
SECTION 1.03. Effective Time....................................... 2
SECTION 1.04. Effects.............................................. 2
SECTION 1.05. Certificate of Incorporation and
By-Laws.............................................. 2
SECTION 1.06. Directors............................................ 2
SECTION 1.07. Officers............................................. 2
ARTICLE II
Effect on the Capital Stock of the
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Constituent Corporations; Exchange of Certificates
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SECTION 2.01. Effect on Capital Stock ................................... 3
SECTION 2.02. Exchange of Certificates .................................. 3
ARTICLE III
Conditions Precedent ...................................................... 4
ARTICLE IV
Termination, Amendment and Waiver
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SECTION 4.01. Termination............................................... 4
SECTION 4.02. Effect of Termination..................... ............... 4
SECTION 4.03. Amendment................................. ............... 5
(i)
ARTICLE V
General Provisions
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SECTION 5.01. Notices.............................................. 5
SECTION 5.02 Interpretation....................................... 5
SECTION 5.03. Assignment........................................... 5
SECTION 5.04. Severability......................................... 5
SECTION 5.05. Entire Agreement; No Third-Party
Beneficiaries........................................ 6
SECTION 5.06. Governing Law........................................ 6
SECTION 5.07. Enforcement; Exclusive
Jurisdiction......................................... 6
SECTION 5.08. Counterparts......................................... 7
(ii)
AGREEMENT AND PLAN OF MERGER dated as of February 6,
1998, between PRIMESTAR, INC. a Delaware corporation ("Parent"),
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and COMCAST DBS, INC., a Delaware corporation (the "Company").
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WHEREAS Parent and an affiliate of the Company and certain other
parties are parties to a Merger and Contribution Agreement dated as of February
6, 1998 (the "Restructuring Agreement"), pursuant to which the Restructuring
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Transaction (as defined therein) will be consummated by the parties thereto or
their respective affiliates (capitalized terms used herein but not defined
herein shall have the meanings assigned thereto in the Restructuring Agreement);
WHEREAS the respective Boards of Directors of Parent and the Company
have approved the acquisition of the Company by Parent on the terms and subject
to the conditions set forth in this Agreement;
WHEREAS the respective Boards of Directors of Parent and the Company
have approved the merger of the Company into Parent on the terms and subject to
the conditions set forth in this Agreement, whereby the issued capital stock of
the Company ("Company Capital Stock") (excluding any shares owned by the
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Company), shall be converted into the right to receive, in the aggregate, the
consideration determined as set forth herein; and
WHEREAS for 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").
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NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
The Merger
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SECTION 1.01. The Merger. On the terms and subject to the conditions
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set forth in this Agreement, and in accordance with the DGCL, the Company shall
be merged with and into Parent at the Effective Time (as defined below). At the
Effective Time, the separate corporate
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existence of the Company shall cease and Parent shall continue as the surviving
corporation (the "Surviving Corporation").
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SECTION 1.02. Closing. The Closing shall take place as set forth in
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Section 4.01 of the Restructuring Agreement.
SECTION 1.03. Effective Time. Prior to the Closing Parent shall
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prepare, and on the Closing Date or as soon as practicable thereafter Parent
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
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Merger") executed in accordance with the relevant provisions of the DGCL and
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shall make all other filings or recordings required under the DGCL. The Merger
shall become effective at such time as the Certificate of Merger is duly filed
with the Delaware Secretary of State or at such subsequent time as shall be
stated in the Certificate of Merger (the "Effective Time").
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SECTION 1.04. Effects. The Merger shall have the effects set forth
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in Section 259 of the DGCL.
SECTION 1.05. Certificate of Incorporation and By-laws. (a) The
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Restated Certificate of Incorporation of Parent 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.
(b) The By-laws of Parent as in effect immediately prior to the
Effective Time shall be the By-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
SECTION 1.06. Directors. The directors of Parent immediately prior
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to the Effective Time shall be the directors of the Surviving Corporation, until
the earlier of their resignation or removal or until their respective successors
are duly elected and qualified, as the case may be.
SECTION 1.07. Officers. The officers of Parent immediately prior to
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the Effective Time shall be the officers of the Surviving Corporation, until the
earlier of their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be.
3
ARTICLE II
Effect on the Capital Stock of the
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Constituent Corporations; Exchange of Certificates
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SECTION 2.01. Effect on Capital Stock. At the Effective Time, by
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virtue of the Merger and without any action on the part of the holder of any
shares of Company Capital Stock or any shares of capital stock of Parent:
(a) Capital Stock of Parent. Each issued and outstanding share of
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capital stock of Parent shall remain outstanding and unaffected by the Merger.
(b) Cancelation of Treasury Stock. Each share of Company Capital
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Stock that is owned by the Company shall automatically be canceled and shall
cease to exist, and no Parent Common Stock or other consideration shall be
delivered in exchange therefor.
(c) Conversion of Company Capital Stock. Subject to Section 2.01(b),
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all outstanding shares of Company Capital Stock, in the aggregate, shall be
converted into the right to receive, in the aggregate, the consideration
determined as set forth in Section 3.05 of the Restructuring Agreement;
provided, that the amount of such consideration payable under this Agreement
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(the "Merger Consideration"), shall be equal to (x) the amount determined to be
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payable in respect of Comcast pursuant to Section 3.05 of the Restructuring
Agreement minus (y) the Merger Consideration payable under the Comcast II Merger
Agreement (it being agreed that the foregoing allocation of consideration
between the Comcast Merger Agreements shall be made by Parent). As of the
Effective Time, all such shares of Company Capital Stock shall no longer be
outstanding and shall automatically be canceled and shall cease to exist, and
the holders of certificates ("Certificates") which immediately prior to the
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Effective Time represented any such shares of Company Capital Stock shall cease
to have any rights with respect thereto, except the collective right to receive
the Merger Consideration upon surrender of all such Certificates in accordance
with Section 2.02, without interest.
SECTION 2.02. Exchange of Certificates. (a) Promptly following the
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Effective Time, upon surrender of all Certificates for cancelation to Parent,
together with such other documents as may reasonably be required by Parent to
evidence such surrender, Parent shall deliver to the
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holders of Certificates, for exchange in accordance with this Article II, their
pro rata share (based on relative numbers of shares represented by the
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Certificates) of the Merger Consideration payable pursuant to Section 2.01 in
exchange for 100% of the Certificates. Delivery shall be effected, and risk of
loss and title to the Certificates shall pass only upon delivery of such
Certificates to Parent.
(b) No Further Ownership Rights in Company Capital Stock. The Merger
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Consideration issued (and paid) in accordance with the terms of this Article II
upon conversion of any shares of Company Capital Stock shall be deemed to have
been issued (and paid) in full satisfaction of all rights pertaining to such
shares and there shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of shares of Company Capital Stock
that were outstanding immediately prior to the Effective Time. If, after the
Effective Time, any Certificates are presented to the Surviving Corporation or
the Exchange Agent for any reason, they shall be canceled and exchanged as
provided in this Article II.
ARTICLE III
Conditions Precedent
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The sole condition precedent to the respective obligation of each
party to effect the Merger shall be satisfaction (or waiver by the applicable
beneficiary of the applicable condition) of the conditions set forth in Article
VIII of the Restructuring Agreement.
ARTICLE IV
Termination, Amendment and Waiver
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SECTION 4.01. Termination. This Agreement may be terminated, whether
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before or after the TSAT Stockholder Approval and whether before or after
approval of the stockholders of the constituent corporations to the Merger, but
only upon termination of the Restructuring Agreement in accordance with the
terms thereof.
SECTION 4.02. Effect of Termination. In the event of termination of
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this Agreement by either the Company or Parent as provided in Section 4.01, this
Agreement shall forthwith become void and have no effect, without any
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liability or obligation on the part of Parent or the Company, other than this
Section 4.02 and Article V.
SECTION 4.03. Amendment. This Agreement may be amended, whether
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before or after the TSAT Stockholder Approval and whether before or after
approval of the stockholders of the constituent corporations to the Merger, but
only on the same terms set forth in Section 9.03 of the Restructuring Agreement.
ARTICLE V
General Provisions
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SECTION 5.01. Notices. Any notice or other communication that is
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required or that may be given in connection with this Agreement shall be in
writing and shall be delivered in accordance with Section 10.02 of the
Restructuring Agreement.
SECTION 5.02. Interpretation. When a reference is made in this
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Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents 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".
SECTION 5.03. Assignment. Neither this Agreement nor any of the
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rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by opera tion of law or otherwise by any of the parties
without the prior written consent of the other parties. Any purported
assignment without such consent shall be void. Subject to the preceding
sentences, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
SECTION 5.04. Severability. If any term or other provision of this
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Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby 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
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to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the extent possible.
SECTION 5.05. Entire Agreement; No Third-Party Beneficiaries. This
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Agreement, the other Merger Agreements, the Asset Transfer Agreements, the
Restructuring Agreement, the US West Guarantee, the ▇▇▇▇▇▇ Letter, the
Reimbursement Agreements, the Stockholders Agreement, the ▇▇▇▇▇▇▇▇ Voting
Agreement, the Registration Rights Agreement, the Voting Agreements, the Tax
Sharing Agreement, the TSAT Merger Agreement, the TSAT Stockholders Agreement,
the Drop Down Agreement and the TSAT Tempo Agreement (a) constitute the entire
agreement, and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the Restructuring Transaction and
(b) except for the provisions of Article II are not intended to confer upon any
person other than the parties any rights or remedies.
SECTION 5.06. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof, except to the extent the laws of the State of Delaware are
mandatorily applicable to the Merger.
SECTION 5.07. Enforcement; Exclusive Jurisdiction. (a) The parties
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hereto 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 or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the State of New York or the State of Delaware and any
court of the United States located in the Borough of Manhattan in New York City
or the State of Delaware.
(b) With respect to any suit, action or proceeding relating to this
Agreement (collectively, a "Proceeding"), each party to this Agreement
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irrevocably:
(i) consents and submits to the exclusive jurisdiction of the courts
of the States of New York and Delaware and any court of the United States
located
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in the Borough of Manhattan in New York City or the State of Delaware;
(ii) waives any objection which such party may have at any time to the
laying of venue of any Proceeding brought in any such court, waives any
claim that such Proceeding has been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceeding, that
such court does not have jurisdiction over such party; and
(iii) consents to the service of process at the address set forth for
notices in Section 10.02 of the Restructuring Agreement; provided that such
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manner of service of process shall not preclude the service of process in
any other manner permitted under applicable law.
SECTION 5.08. Counterparts. This Agreement may be executed in one or
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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 parties.
IN WITNESS WHEREOF, Parent and the Company have duly executed this
Agreement, all as of the date first written above.
PRIMESTAR, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
COMCAST DBS, INC.,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Schedule of Omitted Agreements
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Set forth below are agreements substantially identical in all material
respects to this Exhibit 2.5, except as to the parties thereto.
1. Agreement and Plan of Merger dated as of February 6, 1998, between
PRIMESTAR, Inc. and Comcast Satellite Communications, Inc.
2. Agreement and Plan of Merger dated as of February 6, 1998, between
PRIMESTAR, Inc. and Cox Satellite, Inc.
3. Agreement and Plan of Merger dated as of February 6, 1998, between
PRIMESTAR, Inc. and GE Americom Services, Inc.