ATTACHMENT A
AGREEMENT AND PLAN OF MERGER
OF
ORION MERGER COMPANY, INC. ("SUB")
WITH AND INTO
ORION NETWORK SYSTEMS, INC. ("ONS"),
AMONG SUB, ONS, AND
ORION NEWCO SERVICES, INC.
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered into
as of the 8th day of January, 1997, by and among ORION NETWORK SYSTEMS, INC., a
Delaware corporation ("ONS," or, with regard to the period upon and after the
Effective Time of the Merger (as hereinafter defined), the "Surviving
Corporation"), ORION NEWCO SERVICES, INC., a Delaware corporation ("Newco"),
which is a direct wholly-owned subsidiary of ONS, and ORION MERGER COMPANY,
INC., a Delaware corporation ("Sub"), which is a direct wholly-owned subsidiary
of Newco and an indirect wholly-owned subsidiary of ONS (ONS and Sub,
collectively, the "Constituent Corporations," and each, a "Constituent
Corporation").
R E C I T A L S
A. WHEREAS, ONS is a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "DGCL"), and is authorized to
issue a total of Forty-One Million (41,000,000) shares of stock, in two (2)
classes, the first class consisting of Forty Million (40,000,000) shares of
common stock, $.01 par value per share (the "ONS Common Stock"), of which, as of
December 15, 1996, Ten Million Nine Hundred Seventy-Four Thousand One Hundred
and Twenty-One (10,974,121) shares are issued and outstanding (such shares or,
as the context may require, such lesser or greater number of shares of ONS
Common Stock issued and outstanding immediately prior to the Effective Time of
the Merger, the "Outstanding ONS Common Shares") (with, as of December 15, 1996,
an additional Three Million One Hundred Ninety-Six Thousand Nine Hundred and
Seventy-Six (3,196,976) shares of ONS Common Stock being issuable upon
conversion of the Outstanding ONS Series A Preferred Shares (as hereinafter
defined) and the Outstanding ONS Series B Preferred Shares (as hereinafter
defined) and upon the exercise of rights under the ONS Options (as hereinafter
defined) and the ONS Warrants (as hereinafter defined)) and Two Hundred
Fifty-Nine Thousand Five Hundred and Fifteen (259,515) shares are issued but not
outstanding (such shares or, as the context may require, such lesser or greater
number of shares of ONS Common Stock as may be issued but not outstanding
immediately prior to the Effective Time of the Merger, the "Treasury ONS Common
Shares"), and the second class consisting of One Million (1,000,000) shares of
preferred stock, $.01 par value per share (the "ONS Preferred Stock"), of which
Fifteen Thousand (15,000) shares constitute a series of ONS Preferred Stock
having the designation "Series A 8% Cumulative Redeemable Convertible Preferred
Stock" (the "ONS Series A Preferred Stock") (of which shares of ONS Series A
Preferred Stock Thirteen Thousand Eight Hundred and Seventy-One (13,871) are
issued and outstanding as of December 15, 1996 (such shares or, as the context
may require, such lesser or greater number of shares of ONS Series A Preferred
Stock as may be issued and outstanding immediately prior to the Effective Time
of the Merger, the "Outstanding ONS Series A Preferred Shares")), and of which
Five Thousand (5,000) shares constitute a series of ONS Preferred Stock having
the designation "Series B 8% Cumulative Redeemable Convertible Preferred Stock"
(the "ONS Series B Preferred Stock") (of which shares of ONS Series B Preferred
Stock Four Thousand Two Hundred and Ninety-Eight (4,298) are issued and
outstanding as December 15, 1996 (such shares or, as the context may require,
such lesser or greater number of shares of ONS Series B Preferred Stock as may
be issued and outstanding immediately prior to the Effective Time of the Merger,
the "Outstanding ONS Series B Preferred Shares," and together with the
Outstanding ONS Series A Preferred Shares, the "Outstanding ONS Preferred
Shares")).
B. WHEREAS, Sub is a corporation organized and existing under the DGCL, and
is authorized to issue a total of One Thousand (1,000) shares, in a single class
of common stock, $.01 par value per share (the "Sub Common Stock"), of which, as
of the date hereof, one (1) share is issued and outstanding (the "Outstanding
Sub Common Share") (as of the date hereof, Newco holding of record the
Outstanding Sub Common Share) and no shares are issued but not outstanding.
C. WHEREAS, Newco is a corporation organized and existing under the DGCL, and
is authorized to issue a total of Forty-One Million (41,000,000) shares of
stock, in two (2) classes, the first class consisting of Forty Million
(40,000,000) shares of common stock, $.01 par value per share (the "Newco Common
Stock"), of which, as of the date hereof, one (1) share is issued and
outstanding (the "Outstanding Newco Common Share") (as of the date hereof, ONS
holding of record the Outstanding Newco Common Share) and no shares are issued
but not outstanding, and the second class consisting of One
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Million (1,000,000) shares of preferred stock, $.01 par value per share (the
"Newco Preferred Stock"), of which Fifteen Thousand (15,000) shares constitute
or, prior to and at the Effective Time of the Merger will constitute, a series
of Newco Preferred Stock, substantially identical to the ONS Series A Preferred
Stock, having the designation "Series A 8% Cumulative Redeemable Convertible
Preferred Stock" (the "Newco Series A Preferred Stock") (none of which shares of
Newco Series A Preferred Stock are issued and outstanding as of the date
hereof), and of which Five Thousand (5,000) shares constitute or, prior to and
at the Effective Time of the Merger will constitute, a series of Newco Preferred
Stock, substantially identical to the ONS Series B Preferred Stock, having the
designation "Series B 8% Cumulative Redeemable Convertible Preferred Stock" (the
"Newco Series B Preferred Stock") (none of which shares of Newco Series B
Preferred Stock are issued and outstanding as of the date hereof).
D. WHEREAS, the respective Boards of Directors of ONS, Sub, and Newco have
determined that it is advisable and in the best interests of each of ONS, Sub,
and Newco and their respective stockholders that Sub be merged with and into ONS
in accordance with the terms and conditions of this Agreement (the "Merger"),
and accordingly the Board of Directors of each of ONS, Sub, and Newco has
adopted, approved, and authorized this Agreement and the Merger.
E. WHEREAS, it is contemplated that the Merger will be effected in accordance
with Section 251(g) of the DGCL, and it is expected that Ernst & Young LLP
("Ernst & Young"), tax advisor to ONS, will render an opinion (the "Tax
Opinion") that the holders of shares of ONS stock which are converted in the
Merger into the right to receive shares of Newco stock will have the opportunity
to qualify for nonrecognition treatment because the Merger will qualify either
as (a) a reorganization pursuant to Section 368(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), or (b) an exchange satisfying the requirements
of Section 351(a) of the Code.
F. WHEREAS, ONS, Orion Satellite Corporation, a Delaware corporation, and
each of the existing limited partners (other than ONS) (the "Exchanging
Partners") of International Private Satellite Partners, L.P., a Delaware limited
partnership ("Orion Atlantic"), have entered into a Section 351 Exchange
Agreement and Plan of Conversion, dated as of June 1996 (as amended, the
"Exchange Agreement"), pursuant to which ONS has agreed, among other things, to
have Newco issue shares of a series of Newco Preferred Stock that, after the
Effective Time of the Merger, will be provided for and have the designation
"Series C 6% Cumulative Redeemable Convertible Preferred Stock" (the "Newco
Series C Preferred Stock"), in exchange for the Exchanging Partners' respective
limited partnership interests in Orion Atlantic and other rights relating
thereto (the "Exchange").
NOW, THEREFORE, in consideration of the premises, the mutual agreements,
promises, covenants, representations, warranties, acknowledgments, and other
terms, conditions, and provisions set forth herein, and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger; Filing and Effective Time. Subject to and in accordance with
the terms and conditions of this Agreement and the DGCL, this Agreement or in
lieu thereof a certificate of merger regarding the Merger of Sub with and into
ONS (as the case may be, the "Delaware Merger Certificate") shall be executed,
acknowledged, and filed with the Secretary of State of the State of Delaware
(the "Delaware Secretary of State") by the Surviving Corporation at or as soon
as practicable after the Closing (as hereinafter defined). The Merger shall
become effective upon such filing of the Delaware Merger Certificate (the
"Effective Time of the Merger").
1.2 Closing. Subject to and in accordance with the terms and conditions of
this Agreement, the closing of the Merger (the "Closing") shall take place as
soon as practicable after satisfaction of the latest to occur of the conditions
set forth in Article V hereof (the "Closing Date"), at the offices of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., Columbia Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇,
unless another date or place is agreed to in writing by the parties hereto.
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1.3 Effect of the Merger. Upon the Effective Time of the Merger, the separate
existence of Sub shall cease and Sub shall be merged with and into ONS. ONS
shall survive the Merger, and the separate corporate existence of ONS as the
Surviving Corporation shall continue unaffected and unimpaired by the Merger.
Upon and after the Effective Time of the Merger, the rights, privileges, powers,
and franchises of each of the Constituent Corporations, and all property
belonging to each of such Constituent Corporations, shall be vested in the
Surviving Corporation, but all rights of creditors and all liens upon any
property of any of the Constituent Corporations shall be preserved unimpaired,
and all debts, liabilities, and duties of the respective Constituent
Corporations shall thenceforth attach to the Surviving Corporation, and may be
enforced against it to the same extent as if such debts, liabilities, and duties
had been incurred or contracted by the Surviving Corporation, all as more fully
provided under the DGCL.
1.4 Certificate of Incorporation of the Surviving Corporation. The
Certificate of Incorporation of ONS as in effect immediately prior to the
Effective Time of the Merger (the "ONS Charter") shall be the certificate of
incorporation of the Surviving Corporation (the "Surviving Corporation
Charter"), except that the following amendments thereto are to be effected by
the Merger upon the Effective Time of the Merger:
(a) the Surviving Corporation Charter is to be amended by striking
Article FIRST thereof in its entirety and inserting in lieu thereof the
following:
"FIRST: The name of the Corporation is Orion Oldco Services, Inc.
(hereinafter called the 'Corporation').";
(b) the Surviving Corporation Charter is to be amended by adding and
inserting, immediately following Article THIRTEENTH thereof, a new Article
FOURTEENTH thereof, to read in its entirety as follows:
"FOURTEENTH: Any act or transaction by or involving the Corporation
that requires for its adoption under the General Corporation Law of the
State of Delaware (the "DGCL") or this Certificate of Incorporation the
approval of the stockholders of the Corporation shall, pursuant to
subsection (g) of Section 251 of the DGCL, require, in addition, the
approval of the stockholders of Orion Newco Services, Inc., a Delaware
corporation (the name of which is expected to be changed to 'Orion Network
Systems, Inc.'), or any successor thereto by merger, by the same vote as
is required by the DGCL and/or by this Certificate of Incorporation."; and
(c) the Surviving Corporation Charter is to be amended by the Surviving
Corporation's certification, hereby made effective upon the Effective Time
of the Merger, in accordance with Section 243 of the DGCL (the "Paragraph
(c) Certification"), that: (i) that certain "Certificate of Designations,
Rights and Preferences of Series A 8% Cumulative Redeemable Convertible
Preferred Stock" of ONS, filed with the Delaware Secretary of State on
June 17, 1994 (the "Series A Certificate of Designations") prohibits the
reissuance, as part of such series of Preferred Stock of the Surviving
Corporation, of shares of Series A Preferred Stock of the Surviving
Corporation that have been retired; and (ii) a number of shares of Series
A Preferred Stock of the Surviving Corporation equal to the number of
Outstanding ONS Series A Preferred Shares immediately prior to the
Effective Time of the Merger have been retired; and
(d) the Surviving Corporation Charter is to be amended to increase and
restore to 15,000 the number of shares of Series A Preferred Stock that
the Surviving Corporation is authorized to issue (such number of
authorized shares of Series A Preferred Stock of the Surviving Corporation
having been reduced by the Paragraph (c) Certification, in accordance with
the Series A Certificate of Designations and Section 243 of the DGCL, as a
result of the aforesaid retirement of shares of Series A Preferred Stock
of the Surviving Corporation), by striking the number (which is less than
15,000) that appears in the one (1) paragraph resolution appearing at the
top of the second page of the Series A Certificate of Designations (the
"Series A Resolution") (to the extent that the number "15,000" in the
Series A Resolution shall have been amended and changed to such lesser
number by virtue of the Paragraph (c) Certification), and inserting the
number "15,000" in lieu thereof; and
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(e) the Surviving Corporation Charter is to be amended by the Surviving
Corporation's certification, hereby made effective upon the Effective Time
of the Merger, in accordance with Section 243 of the DGCL (the "Paragraph
(e) Certification"), that: (i) that certain "Certificate of Designations,
Rights and Preferences of Series B 8% Cumulative Redeemable Convertible
Preferred Stock" of ONS, filed with the Delaware Secretary of State on
June 16, 1995 (the "Series B Certificate of Designations") prohibits the
reissuance, as part of such series of Preferred Stock of the Surviving
Corporation, of shares of Series B Preferred Stock of the Surviving
Corporation that have been retired; and (ii) a number of shares of Series
B Preferred Stock of the Surviving Corporation equal to the number of
Outstanding ONS Series B Preferred Shares immediately prior to the
Effective Time of the Merger have been retired; and
(f) the Surviving Corporation Charter is to be amended to increase and
restore to 5,000 the number of shares of Series B Preferred Stock that the
Surviving Corporation is authorized to issue (such number of authorized
shares of Series B Preferred Stock of the Surviving Corporation having
been reduced by the Paragraph (e) Certification, in accordance with the
Series B Certificate of Designations and Section 243 of the DGCL, as a
result of the aforesaid retirement of shares of Series B Preferred Stock
of the Surviving Corporation), by striking the number (which is less than
5,000) that appears in the one (1) paragraph resolution beginning at the
bottom of the first page of the Series B Certificate of Designations and
carrying over to the second page thereof (the "Series B Resolution") (to
the extent that the number "5,000" in the Series B Resolution shall have
been amended and changed to such lesser number by virtue of the Paragraph
(e) Certification), and inserting the number "5,000" in lieu thereof.
The Surviving Corporation Charter, as so amended, shall be the certificate of
incorporation of the Surviving Corporation upon and after the Effective Time of
the Merger, unless and until duly amended, altered, changed, repealed, and/or
supplemented in accordance with the DGCL (which power and right to amend, alter,
change, repeal, and/or supplement, at any time and from time to time after the
Effective Time of the Merger, are hereby expressly reserved).
1.5 Bylaws of the Surviving Corporation. The bylaws of ONS as in effect
immediately prior to the Effective Time of the Merger (the "ONS Bylaws") shall
be and continue in full force and effect as the bylaws of the Surviving
Corporation upon and after the Effective Time of the Merger, unless and until
duly amended, altered, changed, repealed, and/or supplemented in accordance with
the DGCL (which power and right to amend, alter, change, repeal, and/or
supplement, at any time and from time to time after the Effective Time of the
Merger, are hereby expressly reserved).
1.6 Directors of the Surviving Corporation. The respective numbers of members
constituting the whole Board of Directors of ONS and each class thereof
immediately prior to the Effective Time of the Merger shall be and continue as
the respective numbers of members constituting the whole Board of Directors of
the Surviving Corporation and each class thereof upon and after the Effective
Time of the Merger, unless and until duly increased or decreased in accordance
with the DGCL (which power and right to increase or decrease, at any time and
from time to time after the Effective Time of the Merger, are hereby expressly
reserved). Each person serving as a member of a particular class of the Board of
Directors of ONS (the "ONS Board") immediately prior to the Effective Time of
the Merger shall be and continue as a member of the same class of the Board of
Directors of the Surviving Corporation upon and after the Effective Time of the
Merger, until such person's successor is elected and qualified or until such
person's earlier death, resignation, disqualification, or removal (which power
and right to remove are hereby expressly reserved).
1.7 Officers of the Surviving Corporation. Each person serving as an officer
of ONS immediately prior to the Effective Time of the Merger shall be and
continue as an officer of the Surviving Corporation, holding the same office or
offices, upon and after the Effective Time of the Merger, until such person's
successor is appointed and qualified or until such person's earlier death,
resignation, disqualification, or removal (which power and right to remove are
hereby expressly reserved).
1.8 Further Assurances. At any time and from time to time upon and after the
Effective Time of the Merger, as and when required or deemed desirable by the
Surviving Corporation or its successors or assigns, there shall be executed,
acknowledged, certified, sealed, delivered, filed, and/or recorded, in the
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name and on behalf of any and each Constituent Corporation, such deeds,
contracts, consents, certificates, notices, and other documents and instruments,
and there shall be done or taken or caused to be done or taken, in the name and
on behalf of any and each Constituent Corporation, such further and other things
and actions as shall be appropriate, necessary, or convenient to acknowledge,
vest, effect, perfect, conform of record, or otherwise confirm the Surviving
Corporation's (or its successors' or assigns') right, title, and interest in and
to, and possession of, all the property, interests, assets, rights, privileges,
immunities, powers, franchises, and authority of each Constituent Corporation
held immediately prior to the Effective Time of the Merger, and otherwise to
carry out and effect the intent and purposes of this Agreement and the Merger.
The officers and directors of the Surviving Corporation (or its successors or
assigns), and each of them, upon and after the Effective Time of the Merger, are
and shall be fully authorized, in the name and on behalf of each Constituent
Corporation, to do and take and cause to be done and taken any and all such
things and actions, and to execute, acknowledge, certify, seal, deliver, file,
and/or record any and all such deeds, contracts, consents, certificates,
notices, and other documents and instruments.
ARTICLE II
EFFECT OF THE MERGER ON
THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 Effect on Capital Stock. Upon and as of the Effective Time of the Merger,
by virtue of the Merger and without any action on the part of the holders of the
respective shares:
(a) Conversion of ONS Shares.
(i) Each of the Outstanding ONS Common Shares and each of the Treasury
ONS Common Shares shall be changed and converted into the right to receive
one (1) validly issued, fully paid, and nonassessable share of Newco
Common Stock (such right to be exercised and deemed to have been exercised
by the respective holders of such Outstanding ONS Common Shares and by ONS
as to the Treasury ONS Common Shares, and such shares of Newco Common
Stock to be issued and deemed to have been issued by Newco, automatically
and immediately upon and as of the Effective Time of the Merger); such
Outstanding ONS Common Shares shall no longer be outstanding and such
Outstanding ONS Common Shares and such Treasury ONS Common Shares
automatically shall be retired as permitted under the DGCL and resume the
status of authorized and unissued shares of Common Stock of the Surviving
Corporation; the capital of the Surviving Corporation shall be reduced as
permitted under the DGCL by an amount equal to the capital theretofore
represented by such Outstanding ONS Common Shares and such Treasury ONS
Common Shares; and the capital of Newco in respect of such shares of Newco
Common Stock shall be determined at an amount equal to the aggregate par
value thereof as permitted under the DGCL.
(ii) Each of the Outstanding ONS Series A Preferred Shares shall be
changed and converted into the right to receive one (1) validly issued,
fully paid, and nonassessable share of Newco Series A Preferred Stock
(such right to be exercised and deemed to have been exercised by the
respective holders of such Outstanding ONS Series A Preferred Shares, and
such shares of Newco Series A Preferred Stock to be issued and deemed to
have been issued by Newco, automatically and immediately upon and as of
the Effective Time of the Merger; with rights to accrued, accumulated, and
unpaid dividends on each Outstanding ONS Series A Preferred Share (the
"Series A Accumulated Dividends") being preserved, unimpaired, unchanged,
and unaffected by such conversion and the Merger, such Series A
Accumulated Dividends carrying over and pertaining to and being accrued,
accumulated, and unpaid dividends on each such share of Newco Series A
Preferred Stock, and each such share of Newco Series A Preferred Stock
carrying and having such Series A Accumulated Dividends as accrued,
accumulated, and unpaid dividends thereon, notwithstanding that such
dividends shall have accrued and accumulated from a date prior to the
issuance of such shares of Newco Series A Preferred Stock); such
Outstanding ONS Series A Preferred Shares shall no longer be outstanding
and automatically shall be retired as permitted under the DGCL and resume
the status of autho
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rized and unissued shares of Preferred Stock of the Surviving
Corporation; the capital of the Surviving Corporation shall be reduced as
permitted under the DGCL by an amount equal to the capital theretofore
represented by such Outstanding ONS Series A Preferred Shares; and the
capital of Newco in respect of such shares of Newco Series A Preferred
Stock shall be determined at an amount equal to the aggregate par value
thereof as permitted under the DGCL.
(iii) Each of the Outstanding ONS Series B Preferred Shares shall be
changed and converted into the right to receive one (1) validly issued,
fully paid, and nonassessable share of Newco Series B Preferred Stock
(such right to be exercised and deemed to have been exercised by the
respective holders of such Outstanding ONS Series B Preferred Shares, and
such shares of Newco Series B Preferred Stock to be issued and deemed to
have been issued by Newco, automatically and immediately upon and as of
the Effective Time of the Merger; with rights to accrued, accumulated, and
unpaid dividends on each Outstanding ONS Series B Preferred Share (the
"Series B Accumulated Dividends") being preserved, unimpaired, unchanged,
and unaffected by such conversion and the Merger, such Series B
Accumulated Dividends carrying over and pertaining to and being accrued,
accumulated, and unpaid dividends on each such share of Newco Series B
Preferred Stock, and each such share of Newco Series B Preferred Stock
carrying and having such Series B Accumulated Dividends as accrued,
accumulated, and unpaid dividends thereon, notwithstanding that such
dividends shall have accrued and accumulated from a date prior to the
issuance of such shares of Newco Series B Preferred Stock); such
Outstanding ONS Series B Preferred Shares shall no longer be outstanding
and automatically shall be retired as permitted under the DGCL and resume
the status of authorized and unissued shares of Preferred Stock of the
Surviving Corporation; the capital of the Surviving Corporation shall be
reduced as permitted under the DGCL by an amount equal to the capital
theretofore represented by such Outstanding ONS Series B Preferred Shares;
and the capital of Newco in respect of such shares of Newco Series B
Preferred Stock shall be determined at an amount equal to the aggregate
par value thereof as permitted under the DGCL.
(iv) Fractional Outstanding ONS Shares and fractional Treasury ONS
Common Shares shall be changed and converted into the right to receive
fractional shares of Newco stock at the same ratio (1:1) as whole
Outstanding ONS Shares and whole Treasury ONS Common Shares and shall
otherwise be treated the same as such whole shares for purposes hereof
("Outstanding ONS Shares" meaning all of the Outstanding ONS Common Shares
and all of the Outstanding ONS Preferred Shares, collectively).
(b) Conversion of Sub Shares. The Outstanding Sub Common Share shall be
changed and converted into a number of validly issued, fully paid, and
nonassessable shares of Common Stock of the Surviving Corporation which is equal
to the number of Outstanding ONS Common Shares immediately prior to the
Effective Time of the Merger, a number of validly issued, fully paid, and
nonassessable shares of Series A Preferred Stock of the Surviving Corporation
which is equal to the number of Outstanding ONS Series A Preferred Shares
immediately prior to the Effective Time of the Merger, and a number of validly
issued, fully paid, and nonassessable shares of Series B Preferred Stock of the
Surviving Corporation which is equal to the number of Outstanding ONS Series B
Preferred Shares immediately prior to the Effective Time of the Merger (such
shares of Common Stock of the Surviving Corporation, such shares of Series A
Preferred Stock of the Surviving Corporation, and such shares of Series B
Preferred Stock of the Surviving Corporation to be issued and deemed to have
been issued by the Surviving Corporation automatically and immediately upon and
as of the Effective Time of the Merger); the capital of the Surviving
Corporation in respect of such shares of Common Stock of the Surviving
Corporation, such shares of Series A Preferred Stock of the Surviving
Corporation, and such shares of Series B Preferred Stock of the Surviving
Corporation shall be determined at an amount equal to the aggregate par value
thereof as permitted under the DGCL and such Outstanding Sub Common Share shall
no longer be outstanding and automatically shall be canceled and cease to exist.
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2.2 Notification of Transfer Agent. Prior to the Closing Date, Newco and ONS
shall notify their respective transfer agents of the conversions of shares of
ONS stock and of shares of Sub stock pursuant to Section 2.1.
2.3 Stock Certificates. Upon and as of the Effective Time of the Merger, by
virtue of the Merger and without any action on the part of either of the
Constituent Corporations or Newco, the holders of the respective shares, or any
other person:
(a) Newco. The shares of Newco Common Stock and the shares of Newco
Preferred Stock, which the Outstanding ONS Shares and the Treasury ONS
Common Shares, respectively, shall have been converted into the right to
receive, shall be represented and evidenced by the same stock certificates
that previously represented and evidenced such Outstanding ONS Shares and
such Treasury ONS Common Shares; and
(b) ONS. The holder of the certificate that immediately prior to the
Effective Time of the Merger evidenced the Outstanding Sub Common Share
(the "Sub Common Stock Certificate") may, at such holder's option,
surrender the same to the Surviving Corporation for cancellation, and such
holder shall be entitled to receive from the Surviving Corporation in
exchange therefor certificates representing and evidencing the number of
shares of Common Stock of the Surviving Corporation, the number of shares
of Series A Preferred Stock of the Surviving Corporation, and the number
of shares of Series B Preferred Stock of the Surviving Corporation into
which such holder's Outstanding Sub Common Share shall have been
converted, and, until surrendered, the Sub Common Stock Certificate shall
represent and evidence the number of shares of Common Stock of the
Surviving Corporation, the number of shares of Series A Preferred Stock of
the Surviving Corporation, and the number of shares of Series B Preferred
Stock of the Surviving Corporation into which the Outstanding Sub Common
Share theretofore represented and evidenced thereby shall have been
converted.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1 Directors and Officers of Newco Upon the Effective Time of the Merger.
(a) Directors. As of the Effective Time of the Merger: (i) the whole
Board of Directors of Newco shall be divided into the same number of
classes into which the whole Board of Directors of ONS shall be divided
immediately prior to the Effective Time of the Merger; (ii) the respective
numbers of members constituting the whole Board of Directors of Newco and
each class thereof shall be equal to the respective numbers of members
constituting the whole Board of Directors of ONS and each class thereof
immediately prior to the Effective Time of the Merger; and (iii) the Board
of Directors of Newco (the "Newco Board") and each class thereof shall
consist of the persons serving as members of the ONS Board and the
corresponding classes thereof immediately prior to the Effective Time of
the Merger. To that end, effective immediately prior to the Effective Time
of the Merger, to the extent necessary to give effect to the intent of the
preceding sentence: (i) the whole Board of Directors of Newco shall be
divided into the same number of classes into which the whole Board of
Directors of ONS is then divided; (ii) the respective numbers of members
constituting the whole Board of Directors of Newco and each class thereof
shall be increased or decreased, as the case may be, to numbers equal to
the respective numbers of members then constituting the whole Board of
Directors of ONS and each class thereof; and (iii) each person then
serving as a member of the Newco Board shall be removed, and each person
then serving as a member of a class of the ONS Board shall be elected as a
member of the corresponding class of the Newco Board, to serve as such
until such person's successor is elected and qualified or until such
person's earlier death, resignation, disqualification, or removal (which
power and right to remove are hereby expressly reserved).
(b) Officers. As of the Effective Time of the Merger, the officers of
Newco shall be the persons serving as officers of ONS immediately prior to
the Effective Time of the Merger. To that end, effective immediately prior
to the Effective Time of the Merger, to the extent necessary to give
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effect to the intent of the preceding sentence, each person then serving as an
officer of Newco shall be removed, and each person then serving as an officer of
ONS shall be appointed as an officer of Newco, to hold one (1) or more offices
of Newco corresponding to the one (1) or more offices of ONS then held, until
such person's successor is appointed and qualified or until such person's
earlier death, resignation, disqualification, or removal (which power and right
to remove are hereby expressly reserved).
3.2 Newco Certificate of Incorporation.
(a) Newco Charter. As of the Effective Time of the Merger, the
certificate of incorporation of Newco shall contain provisions identical
to the ONS Charter (the "Newco Charter"). To that end, prior to the
Effective Time of the Merger, to the extent permissible and to the extent
necessary to give effect to the intent of the preceding sentence, the
certificate of incorporation of Newco, as the same theretofore may have
been amended, altered, changed, repealed, and/or supplemented, shall be
duly amended, altered, changed, repealed, and/or supplemented, in
accordance with the DGCL, and (subject to paragraph (b) of this Section)
such Newco Charter, as so altered, changed, repealed, and/or supplemented,
shall be and remain the certificate of incorporation of Newco upon and
after the Effective Time of the Merger, unless and until duly amended,
altered, changed, repealed, and/or supplemented in accordance with the
DGCL (which power and right to amend, alter, change, repeal, and/or
supplement, at any time and from time to time after the Effective Time of
the Merger, are hereby expressly reserved).
(b) Name Change; Newco Series C Preferred Stock. The Newco Charter
shall be amended and supplemented (which amendment shall be adopted,
approved, and declared advisable by the Newco Board and adopted and
approved by ONS in its capacity as the sole stockholder of Newco prior to
the Effective Time of the Merger, and which supplement shall be adopted
and approved by the Newco Board prior to the Effective Time of the Merger,
and which amendment and supplement are hereby adopted, approved, and
declared advisable):
(i) immediately following the Effective Time of the Merger, to
change the name of Newco to "Orion Network Systems, Inc.," by striking
Article FIRST thereof in its entirety and inserting in lieu thereof the
following:
"FIRST: The name of the Corporation is Orion Network Systems, Inc.
(hereinafter called the 'Corporation')."; and
(ii) as soon as practicable following the Effective Time of the
Merger, to provide for the Newco Series C Preferred Stock.
3.3 Newco Bylaws. As of the Effective Time of the Merger, the bylaws of Newco
shall contain provisions identical to the ONS Bylaws (the "Newco Bylaws"). To
that end, prior to the Effective Time of the Merger, to the extent necessary to
give effect to the intent of the preceding sentence, the bylaws of Newco, as the
same theretofore may have been amended, altered, changed, repealed, and/or
supplemented, shall be duly amended, altered, changed, repealed, and/or
supplemented, in accordance with the DGCL, and such Newco Bylaws as so amended,
altered, changed, repealed, and/or supplemented, shall be and remain the bylaws
of Newco upon and after the Effective Time of the Merger, unless and until duly
amended, altered, changed, repealed, and/or supplemented in accordance with the
DGCL (which power and right to amend, alter, change, repeal, and/or supplement,
at any time and from time to time after the Effective Time of the Merger, are
hereby expressly reserved).
3.4 Consent. Each of ONS, Sub, and Newco shall promptly apply for or
otherwise seek, and use its best efforts to obtain, all consents and approvals
required to be obtained by it for consummation of the Merger.
3.5 ONS Stockholder Meeting; Sub Stockholder Written Consent. ONS shall call
a special meeting of its stockholders (the "ONS Special Meeting") to be held as
promptly as practicable after the date hereof for the purpose of voting upon,
among other things, ratification of this Agreement (the parties understanding
and acknowledging that it is contemplated that the Merger will be effected in
accordance with
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Section 251(g) of the DGCL and that no vote of ONS stockholders adopting,
approving, or authorizing this Agreement or the Merger will be required under
the DGCL). Newco, in its capacity as the sole stockholder of Sub, as promptly as
practicable after the date hereof, shall execute and deliver to Sub a written
consent in lieu of a stockholder meeting adopting, approving, and authorizing
this Agreement, in accordance with Section 228 of the DGCL.
3.6 Employee and Director ONS Stock Options. Upon and as of the Effective
Time of the Merger and in connection with the Merger, to the fullest extent
permitted by applicable law, Newco shall assume all of ONS's obligations, and
ONS shall have no further obligations, with respect to any then-outstanding
option to acquire shares of ONS Common Stock issued under ONS's 1987 Employee
Stock Option Plan and Non-Employee Director Stock Option Plan that theretofore
shall not have expired or been duly exercised by the holders thereof (each, if
any, an "ONS Option"), and the due exercise of rights under any such option
shall entitle the holder thereof to acquire, upon the same terms and conditions
that were applicable under the corresponding ONS Option, a number of shares of
Newco Common Stock identical to the number of shares of ONS Common Stock that
were subject to such corresponding ONS Option (a "Newco Option"). ONS and Newco
agree to take all corporate and other action as shall be necessary to effectuate
the foregoing, and ONS shall use its best efforts to obtain, if required, prior
to the Closing Date, such consent of each holder of an ONS Option as shall be
necessary to effectuate the foregoing. Newco shall take all corporate and other
action necessary to reserve and make available for issuance upon the due
exercise of rights under the Newco Options a sufficient number of shares of
Newco Common Stock, and as soon as practicable following the Effective Time of
the Merger shall provide to the record holders of the Newco Options appropriate
notice of such holder's rights thereunder.
3.7 Warrants. Upon and as of the Effective Time of the Merger and in
connection with the Merger, to the fullest extent permitted by applicable law,
Newco shall assume all of ONS's obligations, and ONS shall have no further
obligations, with respect to any then-outstanding warrant or other right to
purchase shares of ONS Common Stock that theretofore shall not have expired or
been duly exercised by the holder thereof (each, if any, an "ONS Warrant"), and
the due exercise of rights under any such warrant or other right shall entitle
the holder thereof to acquire, upon the same terms and conditions that were
applicable under the corresponding ONS Warrant, a number of shares of Newco
Common Stock identical to the number of shares of ONS Common Stock that were
subject to such corresponding ONS Warrant (a "Newco Warrant"). ONS and Newco
agree to take all corporate and other action as shall be necessary to effectuate
the foregoing, and ONS shall use its best efforts to obtain, if required, prior
to the Closing Date, such consents of the holders of ONS Warrants as shall be
necessary to effectuate the foregoing. Newco shall take all corporate and other
action necessary to reserve and make available for issuance upon the exercise of
rights under the Newco Warrants a sufficient number of shares of Newco Common
Stock, and as soon as practicable following the Effective Time of the Merger
shall provide to the record holders of the Newco Warrants appropriate notice of
such holders' rights thereunder.
3.8 Outstanding Newco Common Share. Upon and as of the Effective Time of the
Merger, ONS shall surrender to Newco the certificate representing the
Outstanding Newco Common Share, and the Outstanding Newco Common Share
automatically shall be retired as permitted under the DGCL and resume the status
of an authorized and unissued share of Newco Common Stock, and the capital of
Newco shall be reduced as permitted under the DGCL by an amount equal to the par
value thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of ONS. ONS hereby represents and
warrants:
(a) Organization. It is duly organized, validly existing, and in good
standing as a corporation under the laws of the State of Delaware.
(b) Power and Authority. It has corporate power and authority to enter
into, execute, deliver, and perform its obligations under this Agreement.
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(c) Capital Stock. The numbers of authorized shares of ONS Common
Stock, ONS Preferred Stock, ONS Series A Preferred Stock, and ONS Series B
Preferred Stock, the numbers of Outstanding ONS Common Shares, Outstanding
ONS Series A Preferred Shares, and Outstanding ONS Series B Preferred
Shares, and the number of Treasury ONS Common Shares are as set forth in
paragraph A of the Recitals to this Agreement.
4.2 Representations and Warranties of Sub. Sub hereby represents and
warrants:
(a) Organization. It is duly organized, validly existing, and in good
standing as a corporation under the laws of the State of Delaware.
(b) Power and Authority. It has corporate power and authority to enter
into, execute, deliver, and (subject to stockholder approval) perform its
obligations under this Agreement.
(c) Capital Stock. The number of authorized shares of Sub Common Stock,
the number of Outstanding Sub Common Shares, and the number of shares of
Sub Common Stock issued but not outstanding, are as set forth in paragraph
B of the Recitals to this Agreement.
4.3 Representations and Warranties of Newco. Newco hereby represents
and warrants:
(a) Organization. It is duly organized, validly existing, and in good
standing as a corporation under the laws of the State of Delaware.
(b) Power and Authority. It has corporate power and authority to enter
into, execute, deliver, and (subject to stockholder approval) perform its
obligations under this Agreement.
(c) Capital Stock. The numbers of authorized shares of Newco Common
Stock, Newco Preferred Stock, Newco Series A Preferred Stock, and Newco
Series B Preferred Stock, the numbers of Outstanding Newco Common Shares,
outstanding shares of Newco Series A Preferred Stock, and outstanding
shares of Newco Series B Preferred Stock, and the number of shares of
Newco Common Stock issued but not outstanding, are, or prior to the
Effective Time of the Merger will be, as set forth in paragraph C of the
Recitals to this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party under this Agreement shall be subject to
the satisfaction at or prior to the Closing of the following conditions:
(a) Stockholder Approvals. This Agreement shall have been approved and
adopted or ratified, as the case may be, by the affirmative vote or
written consent, as appropriate and as the case may be, of the holders of:
(i) at least a majority of the votes of the Outstanding ONS Shares present
in person or represented by proxy at the ONS Special Meeting and entitled
to be voted hereon, voting together as a single class, with each
Outstanding ONS Common Share entitled to one (1) vote and each Outstanding
ONS Preferred Share entitled to one (1) vote for each whole share of ONS
Common Stock issuable upon conversion of such Outstanding ONS Preferred
Share as of the applicable date; (ii) the Outstanding Sub Common Share;
and (iii) the Outstanding Newco Common Share.
(b) Governmental Approvals. All authorizations, consents, orders, or
approvals of, or declarations or filings with, or expiration of waiting
periods imposed by, any administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (a
"Governmental Entity"), necessary for the consummation of the transactions
contemplated by this Agreement, including, but not limited to, such
requirements under applicable state securities laws and the Securities
Exchange Act of 1934, as amended, shall have occurred or been filed or
obtained, other than filings relating to the Merger or affecting Newco's
ownership of ONS or any of its subsidiaries or any of their properties.
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(c) Form S-4. The Registration Statement on Form S-4 covering the
registration of the Newco Common Stock, the Newco Series A Preferred
Stock, and the Newco Series B Preferred Stock shall have become effective
under the Securities Act of 1933, as amended, and shall not be the subject
of any stop order or proceedings seeking a stop order, and the Proxy
Statement/ Prospectus furnished to ONS stockholders regarding this
Agreement, the Exchange Agreement, and the transactions contemplated
hereby and thereby shall not at the Effective Time of the Merger be
subject to any proceedings commenced or threatened by the Securities and
Exchange Commission.
(d) Legal Action. No temporary restraining order, preliminary or
permanent injunction, or other order issued by any court of competent
jurisdiction or other legal restraint or prohibition (an "Injunction")
preventing the consummation of the Merger shall be in effect, nor shall
any proceeding brought by any Governmental Entity seeking any of the
foregoing be pending. In the event an Injunction shall have been issued,
each party agrees to use its reasonable diligent efforts to have the
Injunction lifted.
(e) Statutes. No statute, rule, or regulation shall have been enacted
by any Governmental Entity that would make the consummation of the Merger
illegal.
(f) Tax Opinion; ONS Board Determination. Ernst & Young shall have
issued the Tax Opinion and the ONS Board shall not have altered or
rescinded its determination that ONS stockholders do not recognize gain or
loss for United States federal income tax purposes.
(g) Representations and Warranties. Each of the representations and
warranties made by each party herein shall remain true, complete, and
accurate at the Closing Date as if made on and as of the Closing Date.
(h) The Exchange. The Exchange shall have occurred or be occurring
concurrently with the Merger.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
6.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time of the Merger, whether before or after approval or ratification,
as the case may be, by the stockholders of ONS, Sub, and Newco of this
Agreement, the Merger, the Exchange Agreement, the Exchange, or matters
presented in connection herewith or therewith:
(a) by mutual written consent of the parties; or
(b) by any party if any required approval of the stockholders of ONS,
Sub, or Newco shall not have been obtained by April 30, 1997.
When action is taken to terminate this Agreement pursuant to this Section, it
shall be necessary for such action to be authorized by the Board of Directors of
the party taking such action and for such party then to notify in writing the
other parties of such action.
6.2 Event of Termination. In the event of termination of this Agreement as
provided in Section 6.1 hereof, this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of any party or its
officers or directors to the other parties.
6.3 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense.
6.4 Amendment. This Agreement may be amended by the parties hereto, by action
taken by their respective Boards of Directors, at any time before or after
ratification or approval, as the case may be, by the stockholders of ONS, Sub,
or Newco of this Agreement, the Merger, the Exchange Agreement, the Exchange, or
matters presented in connection herewith or therewith, but after any such
stockholder approval, no amendment shall be made which under Section 251(d) of
the DGCL would require the approval (or further approval) of stockholders
without obtaining such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
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ARTICLE VII
GENERAL PROVISIONS
7.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to Newco or Sub, to
Orion Newco Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) If to ONS, to
Orion Network Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7.2 Severability. If any term or other provision of this Agreement is
invalid, illegal, or incapable of being enforced by any rule of law or public
policy, all other terms, 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
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 to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
7.3 Entire Agreement. This Agreement, including the Exhibits attached hereto
(if any), constitutes the entire agreement among the parties regarding the
subject matter hereof, and supersedes all prior agreements and undertakings,
both written and oral, among the parties or any of them regarding such subject
matter.
7.4 Assignment. This Agreement shall not be assigned by operation of law or
otherwise.
7.5 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
except as otherwise expressly provided herein, 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.
7.6 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 parties, it being understood that all parties need
not sign the same counterpart.
7.7 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation, and effect, by the laws of the State of
Delaware (without reference to conflict of laws rules thereof).
7.8 Agreement. Upon and after the Effective Time of the Merger, an executed
counterpart of this Agreement shall be on file at an office of the Surviving
Corporation, located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, and a copy of this Agreement shall be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of any Constituent
Corporation.
7.9 Certificates of Secretaries. The Certificates of the respective
Secretaries of the parties to be attached hereto are hereby incorporated by
reference and shall be deemed on and part of this Agreement.
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IN WITNESS WHEREOF, Newco, Sub and ONS have caused this Agreement to be
executed, acknowledged, and delivered by their respective officers thereunto
duly authorized, all as of the date first written above.
ORION NEWCO SERVICES, INC.
By: /s/
-------------------------------------------
Name: W. ▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
ORION MERGER COMPANY, INC.
By: /s/
-------------------------------------------
Name: W. ▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
ORION NETWORK SYSTEMS, INC.
By: /s/
-------------------------------------------
Name: W. ▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
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CERTIFICATE OF THE SECRETARY OF
ORION MERGER COMPANY, INC., A DELAWARE CORPORATION
The undersigned, the Secretary of Orion Merger Company, Inc., a Delaware
corporation ("Sub"), does hereby certify that the foregoing Plan and Agreement
of Merger (the "Agreement") of Sub with and into Orion Network Systems, Inc., a
Delaware corporation ("ONS"), by and among Sub, ONS, and Orion Newco Services,
Inc., a Delaware corporation ("Newco"), after first having been duly adopted and
approved by the Board of Directors of Sub and executed and acknowledged by Sub
in accordance with Section 251 of the General Corporation Law of the State of
Delaware (the "DGCL"), has been duly approved and adopted by the sole
stockholder of Sub entitled to vote thereon in accordance with Section 251 of
the DGCL, as of 1997, by written consent in accordance with Section 228 of the
DGCL.
This Certificate shall be attached to and deemed on and a part of the
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the
day of , 1997.
-----------------------------------
Signature
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CERTIFICATE OF THE SECRETARY OF
ORION NETWORK SYSTEMS, INC., A DELAWARE CORPORATION
The undersigned, the Secretary of Orion Network Systems, Inc., a Delaware
corporation ("ONS"), does hereby certify that the foregoing Plan and Agreement
of Merger (the "Agreement") of Orion Merger Company, Inc., a Delaware
corporation ("Sub"), with and into ONS, by and among Sub, ONS, and Orion Newco
Services, Inc., a Delaware corporation ("Newco"), has been duly adopted and
approved by the Board of Directors of ONS on 1997, pursuant to subsection (g) of
Section 251 of the General Corporation Law of the State of Delaware (the
"DGCL"), and that the conditions specified in the first sentence of said
subsection (g) of Section 251 of the DGCL have been satisfied.
This Certificate shall be attached to and deemed on and a part of the
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the
day of , 1997.
-----------------------------------
Signature
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CERTIFICATE OF THE SECRETARY OF
ORION NEWCO SERVICES, INC., A DELAWARE CORPORATION
The undersigned, the Secretary of Orion Newco Services, Inc., a Delaware
corporation ("Newco"), does hereby certify that the foregoing Plan and Agreement
of Merger (the "Agreement") of Orion Merger Company, Inc., a Delaware
corporation ("Sub"), with and into Orion Network Systems, Inc., a Delaware
corporation ("ONS"), by and among Sub, ONS, and Newco, after first having been
duly adopted and approved by the Board of Directors of Newco and executed and
acknowledged by Newco, has been duly approved and adopted by the sole
stockholder of Newco entitled to vote thereon, as of , 1997.
This Certificate shall be attached to and deemed on and a part of the
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the
day of , 1997.
-----------------------------------
Signature
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