EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
ZIPLINK, LLC
(a Delaware limited liability company)
AND
ZIPLINK, LLC
(a Connecticut limited liability company)
AGREEMENT AND PLAN OF MERGER (the "Agreement") approved on March 9,
1999 pursuant to Section18-209 of the Delaware Limited Liability Company Act by
ZipLink, LLC, a limited liability company of the State of Delaware, and in
accordance with its Operating Agreement on said date, and approved on March 9,
1999 pursuant to Section 34-194 of the Connecticut Limited Liability Company Act
by ZipLink, LLC, a limited liability company of the State of Connecticut, and in
accordance with its Operating Agreement on said date.
WHEREAS, ZipLink, LLC, a Delaware limited liability company and
ZipLink, LLC, a Connecticut limited liability company and their appropriate
managers declare it advisable and to the advantage, welfare and best interests
of said limited liability companies and their respective members to merge
ZipLink, LLC, a Connecticut limited liability company with and into ZipLink,
LLC, a Delaware limited liability company pursuant to the provisions of the
Delaware Limited Liability Company Act and the provisions of the Connecticut
Limited Liability Company Act upon the terms and conditions hereinafter set
forth:
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, being thereunto duly approved by the
appropriate managers of ZipLink, LLC, a Delaware limited liability company and
ZipLink, LLC, a Connecticut limited liability company, the Agreement and the
terms and conditions thereof and the mode of carrying the same into effect,
together with any provisions required or permitted to be set forth herein, are
hereby determined and agreed upon as hereinafter in the Agreement set forth.
1. ZipLink, LLC, a Delaware limited liability company, and ZipLink,
LLC, a Connecticut limited liability company, shall, pursuant to the provisions
of the Connecticut Limited Liability Company Act and the provisions of the
Delaware Limited Liability Company Act, be merged with and into a single limited
liability company, to wit, ZipLink, LLC, a Delaware limited liability company,
which shall be the surviving company from and after the effective time of the
merger, and which is sometimes hereinafter referred to as the "Surviving
Company", and which shall continue to exist under its present name pursuant to
the provisions of the Delaware Limited Liability Company Act.
EXHIBIT 2.1
The separate existence of ZipLink, LLC, a Connecticut limited liability company,
which is hereinafter sometimes referred to as the `Terminating Company", shall
cease at the said effective time in accordance with the provisions of the
Connecticut Limited Liability Company Act.
2. The Operating Agreement of Terminating Company, as now in force and
effect, shall become the Operating Agreement of Surviving Company in all
respects, except that the Delaware Limited Liability Company Act shall be
substituted wherever reference is made to the Connecticut Limited Liability
Company Act and any and all references to the State of Connecticut shall be
deemed to refer to the State of Delaware (except any of same which are intended
to indicate addresses). Said Operating Agreement as herein amended and changed
shall continue in full force and effect until further amended and changed in the
manner prescribed by the provisions of the Delaware Limited Liability Company
Act.
3. The ZipLink, LLC Unit Option Plan ("Option Plan") of Terminating
Company, as now in force and effect, shall become the Option Plan of Surviving
Company in all respects. All membership interests, and options and warrants to
acquire membership interests, including, without limitation, any options and/or
warrants issued pursuant to the Option Plan of Terminating Company shall, from
and after the effective time of the merger, be converted into equivalent
membership interests and options and warrants to acquire membership interests in
Surviving Company.
4. Surviving Company agrees (i) that it may be served with process in
the State of Connecticut in any proceeding for enforcement of any obligation of
Terminating Company, as well as for enforcement of any obligation of Surviving
Company arising from the Merger and (ii) to irrevocably appoint the Secretary of
State of the State of Connecticut as its agent for service of process in any
such proceeding. A copy of the process shall be mailed by the Secretary of State
of the State of Connecticut to Surviving Company at the following address:
900 Chelmsford Street
Tower One, Fifth Floor
Lowell, Massachusetts 01851
5. In the event that the Agreement shall have been fully approved and
adopted upon behalf of Terminating Company in accordance with the provisions of
the Connecticut Limited Liability Company Act and upon Surviving Company in
accordance with the provisions of the Delaware Limited Liability Company Act,
the said limited liability companies agree that they will cause to be executed
and filed and recorded any document or documents prescribed by the laws of the
State of Delaware and the State of Connecticut, and that they will cause to be
performed all necessary acts within the State of Delaware and the State of
Connecticut and elsewhere to effectuate the merger herein provided for.
EXHIBIT 2.1
6. The managers and members of Surviving Company and Terminating
Company are hereby authorized, empowered, and directed to do any and all acts
and things, and to make, execute, deliver, file, and record any and all
instruments, papers, and documents which shall be or become necessary, proper,
or convenient to carry out or put into effect any of the provisions of the
Agreement or of the merger herein provided for.
IN WITNESS WHEREOF, this Agreement is hereby signed upon behalf of each
of the parties thereto.
Dated:March 9, 1999 ZipLink, LLC
(a Delaware limited liability company)
By: /s/ Henry M. Zachs
-----------------------------------
Henry M. Zachs
Manager
Dated:March 9, 1999 ZipLink, LLC
(a Connecticut limited liability company)
By: /s/ Henry M. Zachs
-----------------------------------
Henry M. Zachs
Manager