Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
Among
UAXS GLOBAL HOLDINGS INC.,
MIGRATION CORPORATION
and
UNIVERSAL ACCESS, INC.
Dated as of July 18, 2001
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of July
18, 2001, among Universal Access, Inc., a Delaware corporation (the "COMPANY"),
UAXS Global Holdings Inc., a Delaware corporation and a wholly-owned subsidiary
of the Company ("HOLDINGS"), and Migration Corporation, a Delaware corporation
and a wholly-owned subsidiary of Holdings ("MERGER SUB").
RECITALS
WHEREAS, the respective boards of directors of each of Holdings,
Merger Sub and the Company have approved the merger of the Company with Merger
Sub (the "MERGER") and approved the Merger upon the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, the Merger is intended as a holding company reorganization
under Delaware General Corporation Law (the "DGCL") Section 251(g) in which the
Company will become a wholly-owned subsidiary of Holdings;
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
The Merger; Closing; Effective Time
I.1. THE MERGER. Upon the terms and subject to the conditions set
forth in this Agreement, at the Effective Time (as defined in Section I.2) the
Company shall be merged with Merger Sub and the separate corporate existence of
Merger Sub shall thereupon cease. The Company shall be the surviving corporation
in the Merger (sometimes hereinafter referred to as the "SURVIVING
CORPORATION"), and the separate corporate existence of the Company with all its
rights, privileges, immunities, powers and franchises shall continue unaffected
by the Merger, except as set forth in Articles II, III and IV. The Merger shall
have the effects specified in the DGCL.
I.2. EFFECTIVE TIME. As soon as practicable following the execution
of this Agreement, the Company and Holdings will cause this Agreement to be
filed with the Secretary of State of the State of Delaware as provided in
Section 251 of the DGCL.
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The Merger shall become effective at 12:01 a.m. as measured in Chicago, Illinois
on July 20, 2001 (the "EFFECTIVE TIME").
ARTICLE II
Certificate of Incorporation and By-Laws
of the Surviving Corporation
II.1. THE CERTIFICATE OF INCORPORATION. The restated certificate of
incorporation of the Company as in effect immediately prior to the Effective
Time shall be the certificate of incorporation of the Surviving Corporation (the
"CHARTER"), until duly amended as provided therein or by applicable law, except
that: (a) the Charter shall be amended to include Article Fifteenth, which reads
in its entirety as follows:
"FIFTEENTH: Any act or transaction by or involving this Corporation
other than the election or removal of directors that requires for its
adoption under the Delaware General Corporation Law as the same exists or
may hereafter be amended or this Amended and Restated Certificate of
Incorporation the approval of the stockholders of this Corporation shall,
pursuant to Section 251(g) of such General Corporation Law, require, in
addition, the approval of the stockholders of UAXS Global Holdings Inc.
(or any successor by merger), by the same vote as is required by such
General Corporation Law and/or by this Amended and Restated Certificate of
Incorporation; provided that no provision of this Amended and Restated
Certificate of Incorporation shall be deemed or construed to require the
approval of the stockholders of UAXS Global Holdings Inc. to elect or
remove directors of this Corporation."
and (b) Article Fourth of the Charter shall be deleted in its entirety and
replaced with the following: "The aggregate number of shares that this
Corporation shall have the authority to issue is 1,000,000 shares of Common
Stock, par value $0.01 per share."
II.2. THE BY-LAWS. The by-laws of the Company in effect at the
Effective Time shall be the by-laws of the Surviving Corporation (the
"BY-LAWS"), until thereafter amended as provided therein or by applicable law.
ARTICLE III
Officers and Directors
of the Surviving Corporation
III.1. DIRECTORS. The directors of Merger Sub at the Effective Time
shall, from and after the Effective Time, be the directors of the Surviving
Corporation until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Charter and the By-Laws.
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III.2. OFFICERS. The officers of the Company at the Effective Time
shall, from and after the Effective Time, be the officers of the Surviving
Corporation until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Charter and the By-Laws.
ARTICLE IV
Effect of the Merger on Capital Stock;
Exchange of Certificates
IV.1. EFFECT ON CAPITAL STOCK .
(a) At the Effective Time, as a result of the Merger and without any
action on the part of the holder of any capital stock of the Company, each share
and each fraction of a share of the Common Stock, par value $0.01 per share, of
the Company (a "SHARE" or, collectively, the "SHARES") issued and outstanding
immediately prior to the Effective Time, together with the Company Right (as
defined below) or any fraction thereof associated with each Share or fraction
thereof, shall be converted into one share or an equal fraction of a share of
Common Stock, par value $0.01 per share, of Holdings ("HOLDINGS COMMON STOCK")
together with a Holding Company Right (as defined below) or an equal fraction of
such Holding Company Right (together, the "MERGER CONSIDERATION"), associated
with each share of Holdings Common Stock or fraction thereof. At the Effective
Time, all Shares and Company Rights shall no longer be outstanding and shall be
canceled and retired and shall cease to exist, and each certificate (an "OLD
CERTIFICATE") formerly representing any of such Shares and Company Rights shall
thereafter represent only the right to the Merger Consideration and the right to
receive any distribution or dividend pursuant to Section IV.2(c). For purposes
of this Agreement, (i) "Company Right" means one preferred stock purchase right
issued to the holders of Shares pursuant to the Preferred Stock Rights
Agreement, dated as of July 31, 2000 (the "Company Rights Agreement"), between
the Company and Xxxxx Fargo, and (ii) "Holding Company Right" means one
preferred stock purchase right issued to the holders of Holdings Common Stock
according to the terms of the Assumption of and Amendment to the Universal
Access, Inc. Preferred Stock Rights Agreement, dated as of July 13, 2001, among
the Company, Holdings and Xxxxx Fargo, and this Section 1(a).
(b) At the Effective Time, as a result of the Merger and without any
action on the part of the holder of any capital stock of Holdings, each share of
Common Stock, par value $0.01 per share, of Holdings shall be canceled and cease
to exist, and the Company, as the sole holder of such shares, shall thereafter
cease to have any rights with respect to such shares.
(c) At the Effective Time, as a result of the Merger and without any
action on the part of the holder of any capital stock of Merger Sub, each share
of Common Stock, par value $0.01 per share, of Merger Sub shall be converted
into one share of Surviving Corporation and shall, upon conversion, constitute
all of the issued and outstanding shares of Common Stock of Surviving
Corporation, so that, immediately
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following the Merger, the Surviving Corporation shall be a wholly-owned
subsidiary of Holdings.
IV.2. EXCHANGE OF OLD CERTIFICATES FOR SHARES.
(a) EXCHANGE AGENT. As of the Effective Time, Holdings shall
deposit, or shall cause to be deposited, with an exchange agent selected by
Holdings (the "EXCHANGE AGENT"), for the benefit of the holders of Shares,
certificates representing the shares of Holdings Common Stock and Holding
Company Rights to be issued in exchange for Shares and Company Rights
outstanding immediately prior to the Effective Time upon due surrender of the
Old Certificates (or affidavits of loss in lieu thereof) pursuant to the
provisions of this Article IV.
(b) EXCHANGE PROCEDURES. Upon surrender of an Old Certificate for
cancellation to the Exchange Agent together with an appropriate letter of
transmittal, duly executed, the holder of such Old Certificate shall be entitled
to receive in exchange therefor a certificate representing that number of shares
of Holdings Common Stock and Holding Company Rights that such holder is entitled
to receive pursuant to this Article IV, and the Old Certificate so surrendered
shall forthwith be canceled. In the event of a transfer of ownership of Shares
(and associated Company Rights) that is not registered in the transfer records
of the Company, a certificate representing the proper number of shares of
Holdings Common Stock (and associated Holding Company Rights) may be issued if
the Old Certificate formerly representing such Shares (and associated Company
Rights) is presented to the Exchange Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid. If any certificate for shares of
Holdings Common Stock is to be issued in a name other than that in which the Old
Certificate surrendered in exchange therefor is registered, it shall be a
condition of such exchange that the Person (as defined below) requesting such
exchange shall pay any transfer or other taxes required by reason of the
issuance of certificates for shares of Holdings Common Stock in a name other
than that of the registered holder of the Old Certificate surrendered, or shall
establish to the satisfaction of Holdings or the Exchange Agent that such tax
has been paid or is not applicable.
For the purposes of this Agreement, the term "PERSON" shall mean any
individual, corporation (including not-for-profit), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, governmental agency or other body, or other entity of
any kind or nature.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES; VOTING. (i)
All shares of Holdings Common Stock to be issued pursuant to the Merger shall be
issued and outstanding as of the Effective Time, and whenever a dividend or
other distribution is declared by Holdings in respect of the Holdings Common
Stock, the record date for which is at or after the Effective Time, that
declaration shall include dividends or other distributions in respect of shares
of Holdings Common Stock for which Old Certificates remain outstanding as of the
dividend or distribution payment date and which have not been cancelled.
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(ii) Holders of unsurrendered Old Certificates shall be entitled to
vote after the Effective Time at any meeting of Holdings stockholders the number
of whole shares of Holdings Common Stock represented by such Old Certificates,
even though such holders have not exchanged their Old Certificates.
(d) LOST, STOLEN OR DESTROYED OLD CERTIFICATES. In the event any Old
Certificate shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the Person claiming such Old Certificate to be lost,
stolen or destroyed and, if required by Holdings, the posting by such Person of
a bond in customary amount as indemnity against any claim that may be made
against it with respect to such Old Certificate, the Exchange Agent will issue
in exchange for such lost, stolen or destroyed Old Certificate a certificate for
the shares of Holdings Common Stock and any unpaid dividends or other
distributions in respect thereof pursuant to Section IV.2(c).
ARTICLE V
Covenants
V.1. STOCK EXCHANGE LISTING AND DE-LISTING. Holdings shall cause the
shares of Holdings Common Stock to be issued in the Merger to be approved for
quotation on The Nasdaq National Market subject to official notice of issuance,
prior to the Effective Time. The Surviving Corporation shall use its best
efforts to cause the Shares to be no longer be quoted on The Nasdaq National
Market and de-registered under Section 12(g) of the Securities Exchange Act of
1934, as amended, as soon as practicable following the Effective Time.
ARTICLE VI
Miscellaneous and General
VI.1. AMENDMENT AND TERMINATION. Subject to the provisions of
applicable law, at any time prior to the Effective Time, (a) the boards of
directors of the parties hereto may amend this Agreement and (b) the board of
directors of the Company or of Merger Sub may terminate this Agreement.
VI.2. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
VI.3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN
AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
UNIVERSAL ACCESS, INC.
By: ______________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
UAXS GLOBAL HOLDINGS INC.
By: ______________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
MIGRATION CORPORATION
By: ______________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
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CERTIFICATIONS:
The undersigned secretary of the Company hereby certifies that this Agreement
has been adopted pursuant to Delaware General Corporation Law subsection 251(g)
and that the conditions specified in the first sentence of such subsection have
been satisfied.
__________________________________
Xxxxx X. Xxxxxx, Secretary,
Universal Access, Inc.
The undersigned secretary of Merger Sub hereby certifies that this Agreement has
been adopted pursuant to Delaware General Corporation Law subsection 251(g) and
that the conditions specified in the first sentence of such subsection have been
satisfied.
__________________________________
Xxxxx X. Xxxxxx, Secretary,
Migration Corporation
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