EXHIBIT 3.3
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") dated as of December
28, 1999, by and between Loral CyberStar, Inc., a Delaware corporation ("LCI"),
and Loral Orion Services, Inc., a Delaware corporation ("LOSI").
W I T N E S S E T H:
WHEREAS, LCI has entered into a merger agreement with Orion Oldco Services,
Inc. ("Orion Oldco") pursuant to which Orion Oldco shall be merged into LCI
effective as of December 31, 1999; and
WHEREAS, LCI desires, following the above-referenced merger, to merge with
and into LOSI, pursuant to Delaware law, with LOSI being the surviving entity
and assuming the name "Loral CyberStar, Inc." (the "Merger"); and
WHEREAS, Section 253 of the General Corporation Law of the State of
Delaware authorizes the merger of parent corporations and subsidiaries; and
WHEREAS, LCI's Certificate of Incorporation and Bylaws permit, and
resolutions adopted by LCI's Board of Directors authorize, this Agreement and
the consummation of the Merger.
WHEREAS, the parties intend for the Merger to constitute a tax free
reorganization pursuant to Section 368 of the Internal Revenue Code of 1986, as
amended.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties to this Agreement covenant and agree as
follows:
ARTICLE I
THE MERGER
Section 1.01. THE MERGER; SURVIVING CORPORATION. Subject to the terms and
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.02 below), LCI shall be merged with and into LOSI, pursuant to Section
253 of the DGCL, and the separate existence of LCI shall cease. LOSI shall be
the surviving entity (the "Surviving Corporation") and shall continue to be
governed by the DGCL.
Section 1.02. EFFECTIVE TIME. In accordance with Section 253 and 103 of the
DGCL, the Merger shall become effective (the "Effective Time") as of December
31, 1999, immediately following the merger of Orion Oldco into LCI, as set forth
in the certificate of ownership and merger (the "Certificate of Merger") filed
with the Secretary of State of the State of Delaware. The parties hereto agree
that the Certificate of Merger
shall be filed immediately following the execution of this Agreement and the
receipt of any required consent from the Federal Communications Commission to
the Merger. All other filings or recordings required by Delaware law in
connection with the Merger shall also be made as promptly as practical
thereafter.
Section 1.03. EFFECT OF THE MERGER. The Merger shall have the effects set
forth in Section 253 of the DGCL.
ARTICLE II
THE SURVIVING CORPORATION
Section 2.01. NAME. The Surviving Corporation shall be Loral Orion
Services, Inc.
Section 2.02. CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation of LOSI in effect at the Effective time shall be the Certificate
of Incorporation of the Surviving Corporation unless and until amended in
accordance with its terms and applicable law, except that Article First of such
Certificate of Incorporation shall be amended in its entirety to read as
follows: "The name of the Corporation is Loral CyberStar, Inc.". The Bylaws of
LOSI in effect at the Effective Time shall be the Bylaws of the Surviving
Corporation unless and until amended in accordance with their terms and
applicable law. The name of the Surviving Corporation shall be Loral CyberStar,
inc.
Section 2.03. OFFICERS. The officers of LCI immediately prior to the
Effective Time shall serve as officers of the Surviving Corporation and remain
officers until their successors are duly appointed or their prior resignation,
removal or death.
Section 2.04. DIRECTORS. The directors of LCI immediately prior to the
Effective Time shall serve as directors of the Surviving Corporation until their
successors are duly appointed or their prior resignation, removal or death.
ARTICLE III
CONVERSION OF SHARES
Section 3.01. CONVERSION OF LCI SHARES. At the Effective Time, each
outstanding share of common stock of LCI, representing all issued and
outstanding capital stock of LCI as of the Effective Time, shall be converted
into one share of common stock of LOSI.
Section 3.02. CANCELLATION OF LOSI SHARES. At the Effective Time, each
outstanding share of capital stock of LOSI shall be cancelled.
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ARTICLE IV
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
Section 4.01. TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective Time,
LOSI shall continue in existence as the Surviving Corporation, and without
further action, succeed to and possess all the rights, privileges and powers of
LCI and all the assets and property (the "Assets") of whatever kind and
character of LCI shall vest in LOSI without further act or deed; thereafter,
LOSI, as the Surviving Corporation, shall be liable for all of the liabilities
and obligations of LCI and any claim or judgment against LCI may be enforced
against LOSI, as the Surviving Corporation, in accordance with Sections 253, 259
and 103 of the DGCL.
Section 4.02. FURTHER ASSURANCES. If at any time LOSI shall consider or be
advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record in the Surviving Corporation the
title to any property or right of LCI or otherwise to carry out the provisions
hereof, the proper representatives of LCI as of the Effective Time shall execute
and deliver any and all proper notes, agreements, assignments and assurances,
and do all things necessary and proper to vest, perfect or convey title to such
property or right in the Surviving Corporation and otherwise to carry out the
provisions hereof.
ARTICLE V
TERMINATION; AMENDMENT, WAIVER
Section 5.01. TERMINATION. This Agreement and the transactions contemplated
hereby may be terminated at any time prior to the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware, by the Board of
Directors of LCI.
Section 5.02. EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 5.01, this Agreement shall become void and of no effect with
no liability on the part of any party thereto.
Section 5.03. WAIVER. At any time prior to the Effective Time, any party to
this Agreement may extend the time for the performance of any of the obligations
or any acts of any other party hereto, or waive compliance with any of the
agreements of any other party or with any condition to the obligations
hereunder, in each case only to the extent that such obligations, agreements and
conditions are intended for its benefits.
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ARTICLE VI
MISCELLANEOUS
Section 6.01. PRINCIPAL OFFICE OF SURVIVING CORPORATION. The street address
of the Surviving Corporation's principal office is as follows: 2440 Research
Boulevard, Suite 400, Rockville, Maryland 20850.
Section 6.02. ENTIRE AGREEMENT. This Agreement contains the parties' entire
understanding and agreement with respect to its subject matter, and any and all
conflicting or inconsistent discussions, agreements, promises, representations
and statements, if any, between the parties or their representatives that are
not incorporated in this Agreement shall be null and void and are merged into
this Agreement.
Section 6.03. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which
together shall continue a single agreement.
Section 6.04. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to conflicts of law principles.
Section 6.05. HEADINGS. The various section headings are inserted for
purposes of reference only and shall not affect the meaning or interpretation of
this Agreement or any provision hereof.
Section 6.06. GENDER; NUMBER. All references to gender or number in this
Agreement shall be deemed interchangeably to have a masculine, feminine, neuter,
singular or plural meaning, as the sense of the context requires.
Section 6.07. SEVERABILITY. The provisions of this Agreement shall be
severable, and any invalidity, unenforceability or illegality of any provision
or provisions of this Agreement shall not affect any other provision or
provisions of this Agreement, and each term and provision of this Agreement
shall be construed to be valid and enforceable to the full extent permitted by
law.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by an officer duly authorized to do so, all as of the day and year
first above written.
LORAL CYBERSTAR, INC.
By:/s/ Avi Katz
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Name:
Title:
LORAL ORION SERVICES, INC.
By: /s/ Avi Katz
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Name:
Title:
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